UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY QUESTIONS AND ANSWERS FOR BAR-EXAMINATION REVIEW BY CHARLES S. HAIGHT, M. A., LL.B. OF THE NEW YORK BAR AND ARTHUR M. MARSH. B. A.. LL.B. OF THE CONNECTICUT BAB SECOND EDITION NEW YORK BAKER, VOORHIS & COMPANY 1909 1909 COPYRIGHT, 1909. BY BAKER. VOORHIS & COMPANY. J. B. LYON COMPANY PRINTERS AND BINDERS ALBANY, N. Y. e? TO THE DEAX AND PEOFESSORS OF THE HARVARD LAW SCHOOL, to whom the authors are most deeply indebted, THIS BOOK is DEDICATED. PREFACE. The preparation of this book was suggested a number of years ago by the actual work of a general review preparatory to the examinations for admission to the New York Bar. The very marked changes in the methods of Bar Examiners had, at that time, first become manifest, and it was thought that a book for review which was prepared in accordance with the change in the nature of the examination questions would be desirable. The present theory of the Boards of Examiners of the differ- ent States was expressed by a member of the Xew York Board in 1895, when he felt called upon to explain the difference in the form of questions from that of previous years; "We want to see if you can apply legal principles." A student is no longer asked to define a partnership, or a corporation, but is re- quired to state the rights or the liabilities of the parties in a given case. This more exacting method of examination re- quires a more careful review than was formerly necessary when the questions had become almost stereotyped. In preparing the present book no effort has been made to follow any questions asked by former examiners in any State, and no old examination papers have even been consulted. On the contrary, every effort has been made to write a book which should not, in any sense, be a "cramming book," but would simply assist a student to make -the needed review of his past work. It is believed that a book which aids in an honest and thorough review of the legal principles previously acquired occupies a legitimate field. But a review presupposes former study. The present book has not been written with.the least expectation that it would be of interest or of value to laymen who wish to read the ele- mentary principles of the common law. It is for the law student, who has previously done the work, that the book has been prepared. The utmost care has been taken to do the work in such a way as to make the book of equal value in all of the States of the iv PREFACE. country. Citations have been chosen from all jurisdictions, and where there is a conflict between the different States upon any material point, the conflict has been noted, and the opposing jurisdictions given, as far as possible. English cases, also, have been cited, but only where such citations were believed to be of value in this country. In many subjects, such as Real Property and Sales, the leading cases are frequently to be found in the English reports. The cases cited should be read as far as such a course is feasible. A large proportion of them are from the cases selected for use at the Harvard Law School as a result of long experience and'painstaking search, and they will be found to be of the greatest value. The debt which 'the authors owe to the professors of the Harvard Law School is most gladly acknowledged. To them is due any value which the present work may have. The collec- tions of cases made by them have been freely used; the text- books written or edited by them have been freely quoted, and the notes of their lectures have been a constant assistance. It is only hoped that the book may, in 'some degree, reflect the spirit of their instruction. September 15, 1899. C. S. H. A. M. M. PREFACE TO THE SECOKD EDITION. The ten years which have passed since the publication of the first edition have demonstrated the fact that some new subjects should be added to make the book more complete. This work has been done, and in the present edition the subjects of Bankruptcy, Domestic Relations, Suretyship, Per- petuities and Restraints on Alienation have been added. The article on the iSTevv York Code has also been revised to con- form to the amendments passed since 1899. The increased duties of active practice have made it im- possible for the authors to prepare this new material without a delay which seemed undesirable, and they desire to express their indebtedness to Mr. John W. Griffin, of the New York Bar, for his assistance in writing the articles on Suretyship, Perpetuities, and Restraints on Alienation and in revising the article on the New York Code; to Mr. John W. Banks, of the Connecticut Bar, for his assistance in preparing the article on Bankruptcy, and to Mr. David S. Day, of the Connecticut Bar, for his assistance in preparing the article on Domestic Relations. The authors wish also to make acknowledgment of their indebtedness to the professors at the different law schools for their encouragement. The belief that a book of this kind had a legitimate field has been justified by the approval of legal instructors who are known the country over for the singleness of their purpose to train their students thoroughly, and to equip them as fully as possible for the exacting work of the profession. The approval of such critics has made the years spent upon the original work a very pleasant memory, and the acknowledgment of help from the younger men, who have put the book to a practical test, has been scarcely less encouraging. vi PREFACE TO THE SECOND EDITION. It is hoped that the enlarged edition may be still more helpful to the students of the present day in preparing them- selves not only for the passing of their Bar examinations, but for the successful and useful accomplishment of their life work. March 25, 1909. C. S. H., A. M. M. CONTENTS. AGEXCY. Page. I. WHAT ACTS CANNOT BE DONE BY AX AGENT 1 II. WHO MAY BE A PRINCIPAL 1 III. WHO MAY BE AN AGENT , 2 IV. C'ONFEBRING AUTHOBITY TO EXECUTE INSTBUMENTS UNDER SEAL... 2 V. CONFESSING AUTHOBITY GENEBALLY. ACTUAL AND INCIDENTAL AUTHORITY 2 VI. SUBSTANTIAL PERFORMANCE OF AUTHOBITY 3 VII. SUBSTITUTION. DELEGATING AUTHOBITY 4 VIII. RATIFICATION 5 a. Generally. b. Time of ratification. c. Attempt to ratify in part. d. Oral ratification of instrument under seal. e. Ratification without full knowledge. f. As to what constitutes ratification. IX. MODE OF EXECUTING AUTHORITY. FOBM OF SIGNATUBE 9 a. Contracts under seal. b. Negotiable paper. c. Simple, written and oral, contracts. X. LIABILITY OF A PBINCIPAL FOB THE TORTS OF HIS AGENT 10 a. When the relation of principal and agent exists. b. What acts are within the scope of the agency. c. The independent contractor doctrine. XI. AS TO CRIMINAL LIABILITY OF A PRINCIPAL FOB THE ACTS OF AN AGENT 13 XII. LIABILITY OF PRINCIPAL FOR INJURY OCCASIONED TO A SERVANT BY ACT OF A FELLOW- SERVANT 13 a. Generally. b. Who is a servant within the meaning of the fellow-servant rule. c. Vice-principal alter ego. d. Duty of a principal to supply suitable appliances. e. Duty of a principal to select competent agents and to pro- vide a sufficient number of them. f. Agent's knowledge of defects. g. Decisions under statutes modifying the common-law rule. XIII. UNDISCLOSED PRINCIPAL 17 [vii] viii CONTENTS. Page. XIV. TERMINATION OF THE AGENCY 18 a. Revocation by principal. b. Revocation by death. c. Revocation by insanity. d. Revocation by bankruptcy. e. Revocation by war. XV. RIGHTS AND LIABILITIES OF PRINCIPAL AND AGENT INTEB SE 20 a. Generally. b. Agent acting under del credere commission. c. Bad faitli of agent. Inconsistent positions and secret profits. d. Agent's right to compensation. XVI. RIGHT OF PRINCIPAL TO RESCIND 24 BANKRUPTCY. I. JURISDICTION 26 II. VOLUNTARY PROCEEDINGS 26 a. How instituted. b. Partnership proceedings. III. INVOLUNTARY PROCEEDINGS 27 IV. PROVABLE DEBTS 28 V. ELECTION OF TRUSTEE 29 VI. TITLE OF TRUSTEE 30 VII. EXEMPTIONS 31 VIII. EXAMINATION OF BANKRUPT 32 IX. PREFERENCES AND LIENS 32 X. SALE OF ASSETS 33 XI. DISTRIBUTION OF THE ESTATE 34 a. Priority claims. b. Payment of dividends. XII. COMPOSITIONS 35 XIII. DISCHARGE 35 a. Grounds of opposition. b. Debts affected by a discharge. XIV. SUMMARY PROCEEDINGS 37 XV. CONTEMPT PROCEEDINGS 38 XVI. APPELLATE PROCEEDINGS 38 BILLS AND NOTES. I. IN GENERAL . 40 II. ACCEPTANCE 43 III. INDORSEMENT 44 IV. TRANSFER 46 a. Delivery. b. Purchaser for value without notice. c. Transfer of overdue paper. V. DISCHARGE; INCLUDING PAYMENT AND RE-TRANSFEB 51 a. Discharge. b. Payment. c. Re-transfer. CONTENTS. ix Page. VI. PRESENTMENT FOB PAYMENT; PROTEST, AND NOTICE OF DISHONOR. . 56 a. Presentment for payment. b. Protest. c. Notice of dishonor. CARRIERS. I. CARRIAGE OF GOODS 61 a. In general. b. The carrier's liability for loss. 1. In general. 2. Exceptions to the rule. 3. Liability for delay or deviation. 4. Express limitations of the absolute liability. C. Delivery by the carrier. 1. Termination of liability as carrier. 2. Delivery to the consignee. d. Remedies. 1. Against the carrier. 2. The carrier's compensation. e. Miscellaneous topics. H. CARRIAGE OF PASSENGERS 72 a. Who are passengers. b. Liability to passengers for injury. c. Baggage. d. Tickets and regulations. CONSTITUTIONAL LAW. I. " CITIZENS " AND " PERSONS " 76 II. " DUE PROCESS OF LAW " 77 III. THE POLICE POWER 80 IV. THE RIGHT OF EMINENT DOMAIN 83 V. TAXATION 86 VI. EX POST FACTO AND RETROACTIVE LAWS 87 VII. STATE LAWS IMPAIRING THE OBLIGATION OF CONTRACTS 88 VIII. THE REGULATION OF COMMERCE 89 CONTRACTS. I. PARTIES CAPABLE OF CONTRACTING 91 II. CLASSIFICATION OF CONTRACTS 91 IIL MUTUAL CONSENT 92 IV. CONSIDERATION 96 a. In general. b. Sufficiency of consideration. c. Moral consideration. d. Executed consideration. e. Consideration void in part. V. CONTRACTS i OR BENEFIT OF THIRD PERSONS 103 VI. ASSIGNMENT OF CONTRACTS.. . 104 : CONTENTS. Page. VII. CONDITIONAL CONTRACTS 105 a. Generally. b. Conditions precedent. c. Warranties as conditions. d. Breach of conditions. e. Part performance and breach in limine. f. Divisible contracts. g. Waiver of performance. Anticipatory breach. h. Contracts conditional upon notice. VIII. CONTRACTS IMPOSSIBLE OF PERFORMANCE 118 IX. ILLEGAL CONTRACTS 119 a. In restraint of trade. b. Wagering contracts. CORPORATIONS. I. IN GENERAL 123 a. Nature. b. Creation. c. Construction of charters. d. General powers. e. Dissolution. f. Torts and crimes. II. LEGISLATIVE CONTROL 131 a. Charter as a contract between the State and the corporation. b. Control by legislature when power is reserved to amend, alter or repeal the charter. III. VALIDITY OF UNAUTHORIZED CORPORATE ACTS (ULTRA VIRES) 133 IV. RIGHTS OF SHAREHOLDERS 137 a. Power of majority. b. Right of shareholder to sue on behalf of corporation. c. Transfer and its effect; and other rights. V. RIGHTS OF CREDITORS 141 a. With respect to the capital. b. Right to compel payment of stock subscriptions in full. c. Statutory liability of stockholders for corporate debts, in excess of subscriptions for shares. VI. MUNICIPAL CORPORATIONS 146 a. In general. b. Liability in tort. c. Liability for money borrowed or other benefits received. CRIMINAL LAW. I. GENERALLY 153 II. OFFENSES AGAINST THE GOVERNMENT 156 a. Bribery. b. Perjury. c. Contempt of court. CONTEXTS. xi Page. III. OFFENSES AGAINST THE PUBLIC PEACE, HEALTH /ND ECONOMY.... 158 a. Affray. b. Riot. c. Libel and slander. d. Nuisance. e. Conspiracy. IV. OFFENSES AGAINST THE PERSON 160 a. Assault and battery. b. Mayhem. c. Homicide. d. False imprisonment. e. Rape. f. Robbery. V. OFFENSES AGAINST THE DWELLING-HOUSE 163 a. Arson. b. Burglary. VI. OFFENSES AGAINST PBOPEBTY 166 a. Larceny. b. Embezzlement. c. False pretenses. d. Receiving stolen goods. e. Forgery. VII. CRIMINAL PROCEDURE 175 DAMAGES. I. NOMINAL DAMAGES 179 II. REMOTE DAMAGES 179 III. PROSPECTIVE AND PERMANENT INJURY 180 IV. EXEMPLARY OR PUNITIVE DAMAGES 180 V. LIQUIDATED DAMAGES 182 VI. BREACHES OF CONTRACT 183 VII. PROFITS 185 VIII. INJURY TO PROPERTY : 185 IX. INJURY TO PERSON 186 a. Not causing death. b. Causing death. X. SLANDEB AND LIBEL 188 XI. MALICIOUS PROSECUTION 183 XII. SPECIAL DAMAGES 188 XIII. EVIDENCE 189 DOMESTIC RELATIONS. I. MARRIAGE 190 a. Reality of consent. b. Solemnization. c. Parties to the marriage contract. I. In general. II. Mental incapacity. xii CONTENTS. I. MARRIAGE Continued: Page. c. Parties to the marriage contract Continued: III. Consanguinity and affinity. IV. Previous chastity. d. Duress. e. Conflict of laws. II. DIVORCE 193 a. Legislative divorce. b. Jurisdiction. c. Cruelty. d. Desertion. e. Default, collusion and connivance. f. Condonation and recrimination. III. HUSBAND AND WIFE 197 a. The incapacity of a married woman at common law to con- tract or convey property. b. The husband's right to the property of his wife. 1. Real estate. 2. Personal estate. c. Wife's separate estate in equity. d. Certain rights and equities of a wife under modern statutes. 1. Right to contract. 2. Right to maintain suit. 3. Separate earnings. . 4. Right of husband to sue wife and vice versa. e. Liability of a husband for purchases of his wife upon his credit. f. Rights and liabilities of husband and wife independent of contract. 1. Torts. 2. Crimes of a married woman. 3. Husband and wife as witnesses for and against each other. IV. PARENT AND CHILD 202 a. The right of custody. b. The parent's liability for necessaries furnished to his minor child. c. Torts to the child. d. Torts of the child. e. Illegitimate children. V. INFANTS 204 a. Civil rights and liabilities of an infant. 1. Capacity to act as a public officer. 2. Liability for crime. 3. Liability of an infant for his torts. 4. Liability of an infant for necessaries. b. Contracts and conveyances of an infant. 1. In general. 2. Affirmance and disaffirmance. CONTENTS. xiii EQUITY. Page. I. IN GENERAL 208 II. ACCIDENT, MISTAKE AND FBAUD 212 III. SPECIFIC PERFORMANCE 214 IV. INJUNCTIONS 215 EVIDENCE. I. IN GENI.HAL 216 a. Judicial notice. b. Burden of proof. c. Presumptions. d. Admissions and confessions. e. Law and fact. II. LEADING RULICS OF EXCLUSION 221 a. Matters likely to mislead the jury or complicate the case and those of conjectural significance. b. Character of parties. c. Rule against hearsay and exceptions. d. Opinion. III. WRITINGS 229 a. Proof of contents. b. Proof of authorship. c. Alterations. d. The " parol evidence " rule. IV. WITNESSES 234 INSURANCE. I. GENERALLY 237 II. WARRANTY, REPRESENTATION AND CONCEALMENT 237 III. INSUEABLE INTEREST 239 IV. INSURANCE AGENTS 241 V. REINSURANCE 243 VI. REMEDIES 244 PARTNERSHIP. I. THE CREATION OF A PARTNERSHIP 247 II. QUASI OR NOMINAL PARTNERS 250 III. PARTNERSHIP PROPERTY AND THE INTEREST OF A PARTNER THEREIN 250 a. Whether a partnership can hold the legal title to property. b. Survivorship of the legal title. c. The partner's interest in firm property. d. Transfer of a partner's interest. e. The interest passing to the representative of a deceased partner. f. The interest passing to the assignee of a bankrupt partner. g. What interest can be readied by the partnership creditors and the separate creditors of a partner respectively. xiv CONTEXTS. Page. IV. THE SEPARATE PROPERTY OF A PARTNER, AS AFFECTED BY THE PARTNERSHIP RELATION 255 a. Its liability to process in actions for firm debts. b. Distribution of the separate property of a bankrupt partner. c. Distribution of the separate property of a deceased partner. V. THE RELATION OF DEBTOR AND CREDITOR BETWEEN A PARTNERSHIP AND A PARTNER 256 a. Where a partner is debtor to the partnership. b. Where a partner is creditor of the firm. VI. 'RELATION OF DEBTOR AND CREDITOR BETWEEN TWO FIRMS HAVING A COMMON PARTNER 258 VII. ACTIONS BETWEEN A PARTNER AND HIS COPARTNERS 258 a. A partner cannot sue a copartner upon a partnership claim or partnership liability. b. A partner may sue a copartner upon a personal claim. c. A partner cannot prove in the bankruptcy of a copartner in competition with firm creditors. VIII. POWER OF A PARTNER TO ACT IN BEHALF OF THE FIRM 259 a. Sealed instruments. b. Bills and notes. c. Simple contracts. d. Judicial proceedings. e. Liability of firm for breaches of trust. f. Dissolution. g. Winding up a firm. h. Duties of a partner to his firm, i. Special partner. PLEADING AT COMMON LAW. I. FORMS OF ACTIONS 274 II. THE PLEADINGS 277 a. Generally. b. Demurrers. 1. General rules. 2. Effect of demurrer in opening the record. c. Dilatory pleas. d. Traverse. e. General issue and specific traverse. 1. Special assumpsit. 2. General assumpsit. 3. Debt. 4. Trespass. 5. Trover. 6. Detinue. 7. Replevin. 8. Case. f. Special traverse. CONTEXTS. xv II. THE PLEADINGS Continued: Page, g. Replication de injuria. h. Confession and avoidance. i. Pleas in excuse. 1. Special assumpsit, 2. General assumpsit. 3. Debt. 4. Trespass. 5. Trover. 6. Detinue. 7. Case. III. DUPLICITY 289 IV. DEPABTUBE 289 V. NEW ASSIGNMENT 290 VI. MOTIONS BASED ON THE PLEADINGS 291 a. Arrest of judgment. b. A'on obstante veredicto. c. Repleader. PROPERTY; PERSONAL. I. NATURE 293 II. ACQUISITION 293 a. By operation of law. b. By act of the parties. III. POSSESSION 295 a. Judicial process. b. Bailment. PROPERTY; REAL. I. TENURE AND ESTATES 298 II. ACQUISITION OF TITLE WITHOUT A CONVEYANCE 302 a. By operation of law. b. By operation of law against the will of the former owner. III. TITLE BY VOLUNTARY CONVEYANCE INTEB vrvos 306 a. Form of conveyance. b. Description of property conveyed. c. Incidents of leasehold interests. d. Incorporeal hereditaments. e. Covenants in deeds. f. Execution of deeds. g. Estoppel, h. Dedication. IV. RIGHTS IN LAND OF OTHERS 316 V. WILLS AND ADMINISTRATION 319 a. In general. b. Fraud and undue influence. c. Incorporation by reference. d. Competency of witnesses. e. Attestation. xvi CONTEXTS. V. WILLS AND ADMINISTRATION Continued : Page. f. Revocation. g. Probate and administration, h. Legacies and devises. VI. MISCELLANEOUS TOPICS; INCLUDING FIXTUBES AND MORTGAGES.. 329 a. Fixtures. b. Mortgages. c. Emblements. d. Ejectment. e. Waste. f. Eviction. VII. RESTRAINTS ON ALIENATION 336 VIII. RULE AGAINST PERPETUITIES 341 QUASI CONTRACTS. I. NATURE OF THE OBLIGATION 346 II. FAILURE OF CONSIDERATION , 347 a. Mistake. 1. Mistake of law or fact. 2. Mistake as to validity. 3. Mistake as to title. 4. Mistake as to existence of subject-matter. b. Failure of defendant to perform contract. 1. Defendant relying upon Statute of Frauds. 2. Performance impossible. 3. Defendant relying upon illegality of contract. 4. Failure to perform wilful or without excuse. c. Failure of plaintiff to perform contract. 1. Failure in condition of contract. 2. Plaintiff relying upon Statute of Frauds. 3. Plaintiff's performance impossible. III. BENEFIT CONFERRED WITHOUT REQUEST 355 a. Intentionally. b. Unintentionally. IV. BENEFITS CONFERRED AT BEQUEST, BUT NOT IN PERFORMANCE OF CONTRACT 356 V. WAIVES OF TORT 357 VI. RECOVERY OF MONEY PAID BY COMPULSION 35& a, 'Under legal process. b. To avoid injury to plaintiff's business. c. To induce the performance of a duty. SALES. I. GENERALLY 360 II. SALE DISTINGUISHED FROM OTHER CONTRACTS 362 a. From bailments. b. From pledge or mortgage. c. From consignment. III. THE PASSING OF TITLE . 365 CONTEXTS. xvii Page. IV. RULES FOB CONSTRUING INTENTION AS TO THE PASSING OF TITLE.. 364 a. Sale of specific chattel unconditionally. b. Sale of specific chattel conditionally. c. Where chattels are not specified. 1. Generally. 2. Part of a uniform mass. 3. Subsequent appropriation. 4. Goods to be manufactured. d. Reservation of jus disponendi. V. PLACE WHERE SALE TAKES PLACE 368 VI. PEBFORMANCE OF THE CONTRACT 368 a. Delivery. 1. Place. 2. Time of delivery. 3. Right to inspect. 4. Delivery by installmenta. 5. Constructive delivery. b. Acceptance. VII. AVOIDANCE OF THE CONTRACT 373 VIII. BREACH OF THE CONTRACT 373 a. By the seller. 1. Generally. 2. Breach of warranty. b. By the buyer. IX. CONDITIONAL SALES 380 a. Distinguished from bailment, lease, mortgage and consign- ment. b. Conditions to passage of title. c. Rights of third parties. X. BONA FIDE PURCHASERS 384 XI. STOPPAGE IN TRANSITU 385 XII. STATUTE OF FRAUDS 388 a. In general. b. ' Goods, wares and merchandise." c. " Price of ten pounds." d. Acceptance and actual receipt. e. " Earnest " and " part payment." f. " Xote or memorandum in writing." g. " Agents." h. Effect of statute. XIII. FRAUD 396 XIV. FACTORS' ACTS 397 SURETYSHIP. I. NATURE OF CONTRACT 400 II. NOTICE OF ACCEPTANCE OF GUARANTY AND OF DEFAULT BY THE PRINCIPAL 402 III. STATUTE OF FRAUDS . , . 404 xviii CONTENTS. Page. IV. RIGHTS OF SUBETY IN CONNECTION WITH AND AFTEB PAYMENT 408 V. DlSCHABGE OF SUBETY 413 1. Use of principal's defenses. 2. The giving of time to the principal debtor. 3. Creditor's loss of security. 4. Alteration of contract or change in circumstances affecting risk. 5. Fraud, misrepresentation or concealment of material facts. 6. Notice of revocation or death of surety. TORTS. I. NATUBE AND CLASSIFICATION OF TOBTS 428 II. TOBTS AFFECTING THE PERSON 430 a. Assault and battery. b. Consent. c. Accident. d. Duress. e. Self-defense short of endangering life. f. Protection of property short of endangering life. g. Use of force in defending person or property to an extent endangering human life. h. Recaption of personalty. i. Use of force to regain realty. j. Liability of vendor of chattels to other parties than his im- mediate vendee, but caused by his negligence. k. Duty of care on part of occupier of land or buildings. 1. Towards persons on highway adjacent. 2. Towards a trespasser. 3. Towards licensees and invited persons. 1. Injuries by animals. m. Defamation, n. Malicious prosecution. III. TOBTS AFFECTING PEBSONAL LIBEBTY 441 a. Imprisonment. b. Arrest without warrant. IV. TOBTS AFFECTING BEALTY 442 a. Trespass. b. Necessity. c. Acting at peril. Duty of insuring safety. d. Liability for fire and explosives. V. TOBTS AFFECTING PEBSONALTY 445 a. Trespass. b. Conversion. c. Necessity. VI. TRESPASS AB INITIO 447 a. Trespass affecting the person. b. Trespass affecting realty. C. Trespass affecting personalty. CONTENTS. xix Page. VII. DEFENSE AND JUSTIFICATION 448 a. Defense that plaintiff was a wrongdoer. b. Justification. Defendant acting in a judicial capacity. c. Justification. That defendant was an officer acting under process. VI II. PROXIMATE CAUSE 450 IX. NEGLIGENCE. STANDARD OF CARE. DEGREES OF NEGLIGENCE 451 X. CONTRIBUTORY NEGLIGENCE 452 XI. DECEIT 453 TRUSTS. I. GENERAL NATURE OF TRUSTS 456 II. A TRUST DISTINGUISHED 457 a. From a debt. b. From an assignment. c. From an executorship. III. CREATION OF A TRUST 459 a. By declaration, without transfer. b. By transfer to another with a declaration of a trust for a third person. c. Constructive trusts. d. Effect of Statute of Frauds. IV. THE TRUSTEE 461 V. THE CESTUI QUE TRUST 462 VI. TRANSFER OF THE TRUST PROPERTY 463 a. By the trustee. b. Transfer of the equitable interest by the cestui. c. Death of trustee or cestui que trust. d. Bankruptcy. VII. ADMINISTRATION OF TRUST 467 a. In general. b. Remedies. PLEADING AND PRACTICE UNDER NEW YORK CODE OF CIVIL PROCEDURE. I. PLEADINGS 471 a. Summons. b. Complaint. c. Verification. d. Notice of appearance. e. Demurrer. f. Answer. g. Counterclaim. h. Reply. i. General provisions as to pleadings. 1. Frivolous pleading. 2. Amendments. xx CONTENTS. Page. II. MOTION ON THE PLEADINGS 487 III. PARTIES 487 IV. BILLS OF PABTICULABS 489 V. SUBPOENA 490 VI. TENDEB 490 VII. OFFEB OF JUDGMENT ". 491 VIII. TIME 491 IX. PBOVISIONAL BEMEDIES 493 a. Arrest. b. Injunction. c. Attachment. 1. When granted. 2. The affidavit. 3. Jurisdiction. 4. Vacating or modifying the warrant. 5. Attachment of partnership property. d. Replevin. 1. Necessary papers. 2. The affidavit. 3. Rights of the defendant. e. Receivers. f. Deposit, delivery or conveyance of property. X. Lis PENDENS 506 XI. ISTEBPLEADEB 506 XII. EVIDENCE 507 XIII. TRIALS ; INCLUDING JURORS AND JUBIES 508 XIV. ACTIONS BY STATE WBITS 510 a. Habeas corpus to testify. b. Habeas corpus and certiorari to inquire into cause of de- tention. c. Mandamus. d. Prohibition. e. Assessment of damages. f. Certiorari to review. XV. ABBITRATION 516 XVI. SUPPLEMENTABY PROCEEDINGS 516 XVII. LIMITATION OF ACTIONS 517 XVIII. EXECUTIONS 522 XIX. APPEALS 524 a. Generally. b. To the Court of Appeals. c. To the Appellate Division. d. To the Supreme Court. XX. MISCELLANEOUS PROVISIONS . 530 TABLE OF CASES. Page. Abel! v. Howe ' 4G3 Abrath v. R. R. Co 217 Ackert v. Barker 122 Acklev v. Tarbox 200 Ackro'yd v. Smith 313 Adams v. Helm 372 v. Kellogg 321 v. Lindsell 93 v. Messenger 374 v. Palmer 190, 194 v. Tutton 259 Addington v. Allen 453, 454 Co.. v. Bank 458 Ins. Co. v. France 240 v. Jackson 240 v. Maguire 246 Agacio v. Forbes 267 Agate v. Lowenbein 335 Alabama, etc., Ins. Co. v. Oliver.. 395 Alden v. R. R. Co 73 Aldrich v. Bennett 202 v. R. R. Co. . 11 Aldridge v. Johnson 3tio Alexander v. Alexander 197 v. Barker 207 v. Continental Ins. Co. 239 v. Lane 325 v. Thomas 41 v. Swackhamer 397 Alger v. Thacher 120 Allan v. Gomme 317 Allen v. Baker. . 110 v. Crofoot 447 v. Dundas 320 v. Ford 358 v. Hooper 199 v. Maddock 323 v. O'Donald 416 v. Pike 403 v. Rundle 404 v. Sewell 140 v. Stevens 344 Allison v. Chicago, etc., R. R. Co 187 Allsop v. Allsop 429 Althorf -v. Wolfe 10, 14 American Bank v. Baker 415 v. Jenness 50 v. Voisen. . ,. 500 Page. American Biscuit Co. v. Klotz... 120 Amer. Bonding Co. v. Logansport etc., Gas Co 412 American Express Co. v. Stack . . 67 American, etc., Ins. Co. v. Mc- Crea 243 American Freehold, etc., CD. v. Dyker 206 Amer. Surety Co. v. Lawrence- ville Cement Co 412 Ames v. Maclay 413, 414 v. Moir 183 Amies v. Stevens 62 Ani*inck v. Bean 256 Anchor Line v. Dater ' 65 Anchor Milling Co. v. Walsh. . . . 226 Ancona v. Marks 9 Anderson v. Bellenger 420 Anderson, In re 38 v. Bennett 15 Andrews v. Durant 365 v. Partington 345 Anon 280, 285, 289 Anstedt v. Sutter 372 Antisdel v. Williamson.. 4 17, 419, 420 Appleby v. Myers 355 Arendale v. Morgan 384 Argenti v. San Francisco 151 Arguello, In re 468 Arkansas Co. v. Belden Co. 105 Armentrout v. R. R. Co 67 Armstrong Co. v. Clarion Co .... 429 Arndt v. Griggs .- 469 Arnold v. Sprague 43 Arnot v. Pittston, etc., Coal Co.. 120 Artcher v. Zeb 393 Arteaga v. Conner 496 Arthur v. Insurance Co 245 Ashbury Co. v. Riche 135 Ashby v. West 362 v. White 179 Ashmore v. Steam, etc., Co 61 Atchison v. Twine 187 Atherton v. Atherton 195 Atkinson v. Medford 192 Atlantic & G. W. R. R. Co. v. Dunn 181 Atlas Bk.. v. Brownell 422 Atlee v. Fink . . ... 25 XX11 TABLE OF CASES. Tage. Attorney-General v. Aqueduct Corp 129 Attorney-General v. Guardian, etc., Ins. Co 239 Attorney-General v. Ice Co 129 Atwater v. Hough 390 Atwood v. Holeomb 202 v. Lucas 369 At\vool v. Merriweather 138 Aubin v. Daly 293 Auburn, etc., Plank Road Co. v. Douglass 444 Aiulenried v. Betteley 20 Auer v. Penn 308 Auerbach v. R. R. Co 75 Augusta v. Winsor 227 Austerberry v. Oldham 314 Austin v. Bostwick 266 Averett v. Booker 43 Ayres v. Chicago, etc., R. R. Co.. 97 Azemar v. Casella 375 B. Babcock v. Bonnell 385 Bachelder v. Hcagan 445 Backus v. McCoy 312 Bacon v. Robertson 132 v. Towne 224 . Baddeley v. Earl Granville 16 Badenfeld v. Mass. Ace. Assn.... 108 Badger v. Daenieke 267 Bad'ische, etc., Fabrik v. Schott. 120 Baggett v. Meux 339 Bagley v. Cleveland, etc., Co 372 v. Peddie 212 Bailey v. Bailey 332 v. Bussing 429 v. Carleton 305 v. De Crespigny 118 v. Do/ier 59 Bain v. Brown 22 Baker v. Baker 193 Baker v. Briggs 416 Baker v. Crandall 326 Baker v. Kenneth 413 v. State 168 Baldwin v. Cole 446 v. Farnsworth 372 v. Gordon 413 Balfe v. West 20 Bnlfour v. Grace 427 Ball v. Pub. Co 489 Ballentine v. Webb 159 Ballow v. Billings 353 Baltimore v. Board of Police. . . . 146 Baltimore Co. v. Mali 460 Bancroft v. Otis. . 322 Bnnsror, etc. v. Brown 310 Bank v. Bank 10, 40, 457, 45S Page. Bank v. Brown 74 v. Culver 227 v. Hubbell 457 y. Law 45 v. McChesny 262 v. Merrill 42 v. Page 262- v. Sawyer 261 v. Scovil 458 v. Triplett 57 Bank Co. v. Edson 272 Bank of Batavia v. R. R. Co 3 Bank of Commerce v. Union Bank 349 Bank of Monroe v. Anderson Co . . 422 Bank of Uniontown v. Mackey. . . 416 Bank of U. S. v. Sill 51 Banker v. Banker 192 Banner, Ex parte 367 Barber's Appeal 218 Barber v. Vincent 279 Barbier v. Connolly 79, 81, 83 Bardes v. Bank 37, 38 Bare v. Hoffman 170 Baring v. Dix 27t> Barker, Jacob, Re 467 Barker v. Marine Ins. Co 360 Barkley v. Wilcox. 3 IS) Barlow v. Wainwright 310 Barnard v. Adams 71 v. Kellogg 376 Barned's Co., In re 458 Barnes v. Barnes 195, 314 v. Dist. of Columbia 149 v. Dow 467 v. Gay 466 v. Marshall 69 Barney v. Forbes 405 v. Saunders 468, 469 v. Worthington 43 Barr v. R. R. Co 141 Barrett v. Turner 370 Barrie v. Earle 114 Barrow v. Arnaud 378 Barry v. Butlin 218 v. Fisher 502 Barstow v. Savage Mining Co... 140 Bartholomae v. Paull 371 Bartholomew v. Finnemore ...... 207 Bartlett v. Bartlett 198 v. Drew 143 v. Farrington 335 v. Hamilton 20 v. Ins. Co 243 Bartlett, etc., Coal Co. v. Roach. . 16 Barto v. Scheneck 46 Barton v. Briscoe 339 v. Syracuse 150 Bnrwick v. Ensrlish, etc., Bank.. 12 Baseley v. Clarkson 442 TABLE OF CASES. YXlll Tage. Baskin v. Baskin 324 Bass v. Clive 349 Bassell v. Elmore 438 Bassett v. Bassett 193 v. Hughes 104 v. Spoti'ord 69 Batchelder v. Sargent 200 Bates v. Stanton 63 Bauson v. Gosling 415 Battisworth v. Campion 106 Batty v. Carswell 4 Baxendale v. Bennett 51 Baxter v. Camp 217 v. Little 51 Baylor County v. Craig 250 Beach v. Hancock 430 Beall v. January 6 Boainan v. Whitney 251 Bean v. Chaprnan 415 Bean v. Edge 381 Beaty v. Wray 272 Beaver Coal Co., In re 33 Bechervaise v. Lewis 412 Bechtold v. Lyon 403 Beck v. Robley 55 Beckham v. Drake 18 Beckwith v. Philby 442 v. Talbot 395 Beddoe v. Wadsworth 315 Beebe v. Bank 55 v. Knapp 454 Beeclier v. Conradt 115 Beer Co. v. Massachusetts 132 Beers v. B. & A. R. R. Co 74 v. Crowell 391 Behn v. Burness 109, 110 Bell v. Mallory 158 v. Martin 53 v. McConnell 23 v. State 170 Bellows v. Sowles 100 Bellows Falls Bank v. Rutland Bank 42 Belt v. Lawes 221 v. Stetson 371 Benham v. United Guar. & L. Aesn. Co. : 423 Benkert v. Benkert 196 Bennet v. Davis li>; Bennett v. ,Tudon 12 Benson v. Remington 202 Pontlev v. Craven 272 Berkr-lev Peerage Case 225 Berrvltson v. Strans 388 Bernier v. Cobat Mfg. Co 354 Berrv v. State 169 Borl liolf v. O'Reilly 82 Bethune v. Dozier 419 Bibb v. State . . .202 Page. Bibb v. Thomas 325 Bidwell, Re 257 Bidwell v. Catton 99 Bierbach v. Goodyear Rubber Co. 1SD Bigelow v. Gregory 120 v. Stephens 232 Bilbie v. Luinley 347 Biles v. Commonwealth 175 Billings v. Billings 196 Binghamton Bridge, The 127 Bird v. Gammon : . . . . 400 v. Jones 441 Birkley v. Presgrave 71 Birmingham Xat. Bank v. Brad- ley 49 Birsternd v. Farrington 453 Bishop v. Eaton 402, 403 v. Holcomb 465 v. Palmer 120 Bissell v. Bissell 190 v. Gowdy 50 v. Michigan, etc., Co.. 134, 136 Bixbv v. Dunlap , 181 Blackburn v. Reilly 115, 382 Blackman v. Pierce 38>> Blackstone v. Blackstone 328 v. Buttermore 18 Blackwall, The 71 Blade v. Noland 51 Blades v. Higgs 434 Blaen Avon Coal Co. v. Mc- Culloh 185 Blair, In re 33 Blake v. Metzgar 348 Blakeney v. Goode 391 Blancha'rd v. Blood , . . 198 v. Page 68 v. Stevens 48 Blenn v. Lyford 56 Blest v. Brown 423 Blethen v. Levering 45 Blight v. Hartnoll 342 Bliven v. R. R. Co 63 Blodgett v. Weed 261 Blood v. Howard Ins. Co 238 Blood Balm Co. v. Cooper 436 Bloss v. Tobey 163 Blossom v. Shotter 369 Blum v. Marks 385 Blvth v. Birmingham Water Works Co 451 Boardman v. Cutter 391 Bock v. Hea!v 372 Bodino v. Killeen 2 Bodmnn v. Tract Society 234 Boggett v. Frier .' 198 Boggs v. American Ins. Co 23S Bond v. Fitzpatrick 220 Bookwalter v. Clark 367, 378 XXIV TABLE OF CASES. Page. Boone v. Eyre 113 Booth v. Hanley 442 v. Mister 10 v. Starr 312 Borries v. Bank 17 Borrowman v. Free 369 Boston v. Richardson 226 Boston, etc. v. Langdon. . Izi) Boston Ice Co. v. Potter 355 Boston Smelting Co. v. Smith... 248 Bostwick v. Leach 329 Boswell v. Goodwin 465 Boughton v. Boughton 345 v. Flint 468 Boulton v. Jones 355 Boutell v. Warne 373 Bowden v. Bowden 429 Bowen v. Newell 42 Bowery F. Ins. Co. v. Ins. Co .... 243 Bowin* v. Sutherlin 1 267 Bowles v. State 162 Bowne v. Mt. Holly Nat. Bank . . 422 Box v. Jubb 444 Boyce v. Boyce 196 v. Rossborough 322 Boyd v. Snyder 403 Boyden v. Boyden 206 Boyer v. Barr 181 Boylan v. R. R. Co 75 Brackett v. Griswold 453 v. Rich 404 Bradford v. Marbury ; . . 369 Bradhurst v. Ins. Co 71 Bradley v. Ballard 135 v. Brigham 359 v. Fisher 448 v. Heath 438 v. McAfee 30 v. Peixpto 336 Bradshaw v. Warner 383 Brady v. Todd 3 Brairir v. Danielson 52 Brailsford v. Williams 59 Brainerd v. Brainerd 332 v. Cooper 333 Bramliall v. Ferris 336 Bramlett, In re 36 Branch v. Wiseman 254 Brandon v. Robinson. . . .338, 339, 467 Prnn f v. Ehlen 144 Brattle q. Ph. v. Grant 344 Braunn v. Keally 363 Breed v. Hillhouse 56 Kropn v. Richardson 264 Brenham v. Germania Bank.... 151 Brennan v. Bank 54 P>renner v. Hirsche 247 Brett v. Carter 362 Brewer v. Brown 252 v. Proprietors 137, 138 Page. Brice v. Bauer 443 Brick v. R. R. Co 15 Bridge v. Ward 339 Bridges v. Ry. Co 221 Brigg v. Hilton 37 1 Briggs v. Bergen 485 v. Cape Cod, etc., Co.... 129 v. R. R. Co 69, 296 v. U. S 361 Brigham v. Fayerweather 91 v. Palmer 231 Bright v. Boyd 35(i Brill v. Flagler 443 Brind v. Dale. . . : 282, 287 Bristol v. Austin 460 v. Burt 446 v. Warner 41 British, etc., Co. v. Somes 296 British Eq. Assurance Co. v. Great W. Ry. Co 244 British Wagon Co. v. Lea Iu5 Britton v. Turner 43, 353 Broad, Ex parte 458 Broadbent v. Ramsbotham 318 Broadway Bank v. Adams .... 340, 467 Brock v. Bateman 255 Broderick's Will 213 Brodie v. St. Paul 394 Bronson v. Kinzie 88 Brook v. Hook 5 Brooke v. Brooke 291 Brooks v. Hargreaves 41 Brown v. Bradley 9, 10 v. Chicago, etc., R. R. Co. 187 v. Collins 445 v. Curtiss 56, 407 v. Davies 50 v. De Tastel 272 v. Farmers' Bank 406 v. Foster ..112, 371 v. Giles 443 v. Ins. Co... 241, 242, 243, 245 v. Kendall 431 v. Leigh 486 v. Randall 441 v. Road Co 34S v. Sanborn ... 390, 392 v. United Buttdn Co. .... 28 v. Williams . 52 Browne v. West 122 Browning v. Marvin 2t>4 Bruce v. Burr 373 Bruch v. Carter 445 Brunsrm v. Morgan 251 Brunswick, etc., Co. v. United, etc., Co. . 128 Brush v. Scribnjer 48 Bryan v. Bprnheimer 38 v. Weems 294 Bryans v. State 177 TABLE OF CASES. xxv Page. Bryant v. Isburg 375 v. Lord 59 Buchanan v. Tilden 104 Buck v. Ins. Co 238 Buckhause, lie 257, 258 Buckingham v. Hanna *: . . . 211 Buckland v. Adams Express Co.. 61 v. Butterfield 330 Budd v. Hiler 357 v. Xew York 81 Buel v. Boughton 348 Buffalo, etc. v. Dudley 133 Buhl v. Ball 502 Bull v. Kentucky Bank 336 Bull v. Loveland 235 Bullard v. Pearsall ,.... 236 Bullen v. Sharp 248 Bullock v. Babcock 204 v. Campbell 409 Bunce v. Wolcott 306 Burgess v. Vroeland 59, 60 Burnett v. Snyder 248, 249 Burns v. Erben 442 v. People 177, 178 Burr v. Wilson . 455 Burritt v. Belfy 115 v. New Haven 149 Burroughs v. Moss 50 Burrows v. Ward 357 Burt v. Dewey . 350 Burtis v. Thompson 116, 117 Burton v. Larkin 104 Bush v. Lathrop 464 Busier v. Farrington 455 Bussey v. Barnett 283, 287 v. Trans. Co 61 Buster v. Xewkirk 294 Butcher's Sons v. Krauth 22 Butler v. Murray 71 v. U. S 424 Butterfield v. Byron 119 Button v. Hoffman 124 Buttrick v. Lowell 148 Butts v. Voorhees 435 Byrne v. Schiller 351 v. Van Tienhoven 95 C. Cabot Bank v. Warner 60 Cade v. McFarland 433 Cadoll v. Palmer 341 Cachvell v. Blake 106, 111 Cahen v. Platt 115 Cain v. McOuire 392 Cal'or v. Bull 87 Cal-'well v. Leiber 272 Callishor v. Bischoffsheim 100 Callow v. Lawrence 55 Calvert v. Gordon.. . 427 Page. Camblet v. Tupery. * 258 Cambridge Savings Bk. v. Hyde. . 419 Camden v. McKoy 46 Camp v. deary 337 Campbell v. Bowen 268 v. Brown . ' 443 v. Ernest 497 v. Mesier 317 v. Race 443 v. Sherman 449, 450 Canal Bank v. Bank of Albany. . 349 Candor's Appeal 203 Canedy v. Marcy 347 Canfield v. R. R. Co 68 Cann v. Cann 468 Canning v. Williamstown 186 Canny v. Andrews 317 Capen v. Peckham 330 Carbrey v. Willis 312 Cardival v. Smith 441 Carew v. Rutherford 359 Cargo ex Galam 71 Carleton v. Franconia Co 437 Carley v. Jenkins 261 Carme v. Rauh 384 Carnwright v. Gray 43 Carpenter v. Carpenter 195, 207 v. Centennial, etc., Assn. 238 v. Ins. Co 446 v. State 157 Carr v. Hood 159 v. Ins. Co 243 v. Northern Liberties 149 Carrier v. Cameron 261 Carroll v. R. R. Co 68 v. Weld 46 Carroll Co. v. Young 34 Carson v. Insurance Co.. 241, 242, 243 Carsten v. R. R. Co 75 Carter v. Phillips 369 v. Whalley 263 Carver v. Steele 418 Carwile v. State 158 Case v. Wolcott. . , 183 Casey v. Brabason 405 Casher v. Peterson 296 Cashman v. Reynoms 486 Casky v. Casky 271 Cassidy v. McKenzie 19 Castle v. Bullard 269 Caswell v. Parker 204 Catlin v. Eacle Bank 142 Cave v. Mackenzie 404 Cayuga. etc. v. Warden 56 Central Bank v. Hammett 55 Central, etc., Co. v. Cushman. ... 120 v. Smith 130 Central Trans. Co. v. Pullman... 135 Ciiali'ee Countv v. Potter Iu2 XXVI TABLE OF CASES. Page. Chamberlain v. Hopps 41 v. Williamson 326 Chamberlayne v. Brockett 344 Chambers v. Davidson 380 Champlin v. Pepdleton 309, 310 Chandler v. Fulton 386, 387 v. Simmons 207 Chaney v. Arnold lyl Chapin v. Freeland 294 v. Lapham 406 Chaplin v. Rogers 370, 393 Chapsky v. Wood 202 Charles River Bridge v. Warren Bridge . 127 Chase v. Kittredge 324 v. Westmore 296 Chastain v. Bowman 2 Chauncey v. Dyke Bros 34 Cheever v. Wilson 195 Cheney v. R. R. Co 75 Chesley v. Pierce 146 Chester v. Dickerson 269 Chesterfield v. Janssen 213 Chestnut Hill, etc. v. Rutter 130 Chicago Co. v. Nichols 458 Chicago, etc., R. R. Co. v. Dane... 95 Chicago, etc., R. R. Co. v. Harwood 187 Chicago, etc., R* R, Co. v. Price : Ill Chicago, etc., R. R. Co. v. Sweet 187 Chicago Gas Light Co. v. Peo- ple's, etc., Co 119 Child v. Affleck 440 v. Boston ..'.* 149 Children's Aid Soc. v. Love- ridge 322 Childress v. Yourie 180 Childs v. Jordan . 461 v. O'Donnell 362 Chirac v. Reinicker 235 Chism v. Schipper Ill Chrisman v. Wheaton 319 Christian v. Bunker 382 Christian Union v. Yount 124 Christie v. Borelly 107 Christophers v. W'hite 270 Christ's Hospital v. Grainger, 341, 344 Christy v. Sherman 268 Chrysler v. Canaday 454 v. Renois 40 Churchyard v. Churchyard 196 Cilley v. Colby 415 Citizens', etc., Bank v. Rich- mond 48 City Bank v. Bruce 33, 128 v. Hopson 56 v. Phelps 403 v. Young 413 Page. City of Lowell v. Hadley 82 City of N. Y. v. Clark 419 Clatiin v. Claflin : 339 Clapp v. Fuller-ton 220 v.. Lacey 273 v. Peterson 143 Clare v. Lamb 350 Claridge v. Evelyn 204 Clark v. Adams 44G v. Clark 194 v. Garfield 467 v. Holmes 16 v. Miller 4.30 v. Pinney 184, 359 v. Rideout 440 v.' Sigourney 45 v. Turnbull 100 Clarke's Appeal 320 Clarke v. Cus'iing 254 v. Dutcher 347 v. School District 150 v. Spence 367 Clay v. Edgerton 56 Cleary v. Sohier 35 i Cleghorn v. N. Y., etc., Ry. Co. . . 181 Cleland v. Waters 462 Clements v. Flight 284 v. Smith 372 Clerk v. Smith 302 Cleveland Rolling 'Mill Co. v. Rhodes 369, 382 Clifford v. Watts lid Clifton v. Brown 486 Clow v. Derby Coal Co 417 Clyde v. Hubbard . 63 Coal, etc., Co. v ; Roach J 6 Coalhart v. Clementson 427 Cobb v. Hatfield '. . , 214 Coburn v. Webb 420 Cochran v. Cochran 1 "0 v. Wheeler 55 Cochrane v. dishing 414 v. Moore 294 Cock v. Taylor 61) Cockroft v.'K Y., etc., R. R. Co. . 183 Coffey v. Universal Ins. Co 23S Coffin v. McLean 412 v. U. S 21S Cogel v. Ralph 46.3 Coggeshall v. Ruggles 409 Cohn v. Husson 484 Coit v. Gold, etc., Co 144 Cole, In re 38 Cole v. Berry 382, 383 v. Cassidy '. . . 453 v. Cunningham 4GD v. Hawkins 280 v. Manmler 279 v. Reynolds 25S v. Sewell . .341 TABLE OF CASES. xxvii Page. Colehan v. Cooke 41 Coleman v. Applegarth 96 v. -Commonwealth 234 Collector v. Day 87 Collins v. Council Bluffs 187 v. Locke 120 v. Sullivan 23 Coloma v. Eaves 152 Col ten v. Willoughby 361 Coltons v. Holliday 25 Commercial Bank v. Jones 415 v. Warren. ... 5 Com'rs Char. Don. v. Clifford .... 344 Com'rs McDowell Co. v. Nichols.. 411 Commonwealth v. Barry 171 v. Berry 167 v: Bridge Co. ... 130 v. Burke 163 v. Call 173 v. Carey 162 v. Central Bridge Co 130 v. Clark 43.3 v. Culver 220 v. Dimond 170 v. Donahue 434 v. Drew 171 v. Egan 201 v. Essex Co 133 v. Fairbanks .... 229 v. Fleming 368 v. Foster . . .171, 175 v. Goodenough . . . 175 v. Graham ... . . 202 v. Grant . . A . . . 157 v. Green 204 v. Greene 169 v. Hardy .223 v. Hartnett . . . . 170 v. Holder 156 v. Holland 163 v. Humphries . . . 163 v. Insurance Co.. 129 v. Kennard .... 449 v, Kenny 193 v. Kingsbury . ... 160 v. Knapp 220 v. Knight 157 v. Lancaster .... 172 v. Land 177 v. Leonard 174 v. Mason 169 v. Macloon 155 v. McAtee 155 v. McShane 177 v. Miller 159 v. Moreland .... 174 v. Morrill 173 v. Newell . .165 Page. Commonwealth v.'CXMalley 167 v. Perkins 176 v. Perry 159 v. Pickering .... 157 v. Pollard 157 v. Pritchard .... 156 v. Ray 174 v. Robinson 220 v. Roby 177, 178 v. Sholes 177 v. Smith 128 v. Snelling 158 v. Stephenson ... 165 v. Stone 176 v. Strupney 165 v. Titus 167 v. Uprichard .... 156 v. Upton 159 v. Webster 161 v. White 169 v. Williams 165 Comstock v. Affoelter 369 v. Scales 361 Concord Bank v. Bellis 197 Condict v. R. R. Co 451 Condon v. Ry. Co 66, 108 Conkey v. Bond 22 Connor v. Trawick's Administra- tor 460 Conrad v. Fisher 380 Conrader v. Cohen 27 Converse, In re 79 Converse v. Converse 32 1 Conway v. Alexander 381 v. Starkweather 310 Cook, Ex parte 258 Cook v. Brown 315 Coo.k v. Daggett 356 v. McClure 302 v. Slate Co 262 v. Southwick 46 v. Stearns 319 v. Van Home 363 Cooke v. Millard 390 Cooley v. Dewey 204 v. Wardens 90 Coolidge v. Payson 43 Coombs v. Scott 8 Coope v. Bowles 265 Cooper, Ex parte 3SG Cooper v. Cooper 357 v. Joel 413 v. Newman 384 Cooper's Case 433, 434 Coppin v. Greenless Co 128 Cork Distilleries Co. v. Ry. Co.. 67 Cork, etc.. Ry. Co., In re.'. 352 Corn Exchange Bank v. Nassau Bank 348 XXV111 TABLE OF CASES. Page. Corwine v. Corwine 328 Cory v. Barnes 380 Coagrove v. McKasy 410 Cotterall v. Hindle 22 Couling v. Coxe 292 Counselman v. Hitchcock 32 County of Mahaska v. Ingalls . . . 227 Courtwright v. Leonard 365 Coventry v. R. R, Co 3 Cowan v. Duncan 411 Cowen v. People 173 Cowell v. Springs Co 342 Cowley v. Smyth 453 Cox v. Bank 57 v. Freedley 310 v. Hickman 248, 24!) Crabb v. Crabb 195 Crabtree v. Alessersmith 117 Craig v. Parkis 404 Craig v. Van Bebber 207 Craker v. Chic., etc., R. R. Co 186 Cram v. Bangor House 260 Crandall v. Lincoln 128, 143 Crane v. Brigham 330 Cranson v. Goss 47 Crawford v. Burke 29, 37 Crawshay v. Collins 272 Craythorne v. Swinburne 410 Crease v. Babcock 89 Cressey v. Sabre 301 Crispin v. Babbitt 14 Crist v. Kleber 381 Crocker v. Gullifer 362 Crofut v. Danbury 147 Crogate's Case 28o Croman v. Stull iU2 Crommelin v. R. R. Co 69 Grossman v. Grossman 231 Crouch v. Gutmann Ill Crouise v. Crouise 193 Crowder v. Langdon 212 Crowninshield v. Crowninshield . . 218 Crump v. McMurty 409 Cuming v. Brown 387 Gumming v. Gumming 197 Cumming's Appeal 255 Cundy v. Lindsey 397 Cunliff v. Harrison 366 Cunningham v. People 175 v. Reardon 355 Curnen v. Mayor 346 Currier v. Gale 227 v. Ins. Co 240 v. Lockwood 40 Curtin v. Somerset 436 Curtis v. Brewer 182 v. Harlow 140 v. MacDoupal 200 v. Williamson . 17 rage. Curtiss v. Ayrault 313- Cusack v. Robinson 39-i Gushing v. Breed b65 Cutliff v. McAnally 1U Cutter v. Butler 32.1 Cutting Co. v. Packers' Exchg . . . 4UO D. Daby v. Ericsson 251 Dailey v. King 100- Dair v. U. S -. 425 Dalrymple v. Dalrymple 191. DanV "Brown 219, 325' Dana v. Sawyer 57 Dane v. Ins. Co 509 Daniel v. Toney 260 v. Townsend 256 Daniell v. Sinclair 347 Daniels, Ex parte 265- Daniels y. Hudson, etc., Ins. Co . . 237 v. Newton ....! 117 Danser v. Warwick 461 D'Aquila v. Lambert 385 Darling v. R. R. Co 437 v. Westmoreland 222 Darlington v. Mayor 147 Dartmouth College v. Wood- ward 74, 131, 194 Davidson v. Graham 65 v. Xew Orleans 78- Davies v. Humphreys 227 v. Mann 452 v. Penton 280 Davis v. Cong. Society 437 v.'Garrett .....' 64 v. Hamlin 23 v. Heard 455 v. Lane 19 v. McFarlane . . 392 v. Miller 54 v. Munson 97 v. Old Colony Co 135 v. Peck . . ." 68 v. Russell 370, 39S> v. Sigourney 2JO- v. Van Buren 42 /' v. Wells, Fargo & Co. .402, 404 v. Windsor Savings Bank, l.l Davison v. Powell 482 Dawkins v. Lord Penrhyn. 335 Daws v. Nat. Exchange 'Bank 367 Dawson v. R.' R. Co 64 Day v. Boswell 247 v. Ins. Co 2-45 v. Pool 370 Dayville Woolen Co., In re 29 Dean, In re 462 Dearborn v. Turner 383 Dearie v. Hall . . . 465 TABLE OF CASES. xxix Page. Deaton, In re 157 Debuw v. Coif ax 333 De Comas v. Frost 21 Decker v. Fredericks 12 De Cremer v. Anderson 402 De Cuadra v. Swann 71 Deerfield v. Arms 302 Deering v. Earl of Winchel- sea 209, 410 De Freest v. Warner 102 Deitz v. Ins. Co 242 Delafield v. Hand 230 De Lancey v. Ga Nun 305 Delaware, The 70 Delaware & H. Canal Co. v. Penn. Coal Co 108 Delaware Bank v. Jarvis 349 Demonbreun v. Walker 231 Dempsey v. Chambers 8 Dench v. Walker 446 Denning v. Roome 316 Dennis v. Clark 203 Dennison v. Ins. Co 238 Dennistoun v. Stewart 58 Denny v. Metcalf 258 v. R. R. Co 450 Depew v. Leal 503 De Pinna v. Polhill 282 Dering v. Winchelsea 209 Derrickson v. Smith 145 Derry v. Peek 453 Detroit v. Blakeby 149 Deutsch v. Bond 405 Devens v. Insurance Co 242 Devine v. Edwards 348 Dew v. Parsons 359 Dexter v. Blanchard 406 v. Borth 235 v. Hall 91 v. R. R. Co 74 Dias v. Chickering 381 Dickinson, Appellant 467 Dickinson v. Dodds 96 Dickson v. MacPherson 421 Dietz v. Langfitt 429 Diggles, In re 460 Dingloy v. Boston 84 District of Columbia v. Armes. . . 222 v. Cornell. . 51 Ditson v. Ditson 194 Diversey v. Smith 145 Dixon v. Ramsay 320 Dob v. Holsey 261 Dobbins v. Com'rs Erie Co 87 Dobrm v. Pearce 482 Do(i-l v. Acklom 308 Doclsje v. Hopkins 7 v. Stiles 98 Doe v. Bell 310 Pa pe. Doe v. Hiscocks 234 v. Leek 311 v. Ross 230 Doe d. Gill v. Pearson 336 Doherty v. Hill 233 Dole v. Erskine 433 Don Moran v. People 163 Dooley v. Co 53 Dorr v. Fisher 350 Dorrington v. Carter 28$ Dosdall v. County 148 Doss v. Mo., etc., R. R. Co . . . 181 Doubleday v. Kress 54 Doughty v. Savage 424 Douglas v. Gansman 200 v. Reynolds 57 Dounce v. Dow 376 Dow, In re 36 Dowling v. McKenney 351 Downer v. Bank 464 Downing v. Mt. Washington Road Cc 127, 148 Dowzlet v. Rawlins 262 Doyle v. Trinity Church 357 Drake v. Baker 183 v. Price 459 v. Seaman 405 Drayton v. Wells 224 Drew v. Beard 272 v. Ferson 272 v. Nunn 19, 263 v. Wakefield 328 Drewry v. Young 395 Drinkwater v. Dowding 20 Driscoll v. Winters 4i;0 Dubois's Appeal 260 Dubois v. Hermance 482 Dudley v. Kentucky High School. 137 Dugan v. Anderson 117 Dugdale, In re 336 Duke of Rutland v. Bagshawe . . . 292 Dumaresly v. Fisly 191 Dunbar v. Dunbar 28 Duncan v. Baker 113 v.' Charles 115 v. Gilbert 42 v. Maryland Sav. Inst ... 43 Dunham's Appeal 22') Dunlap v. Foster 411 Dunlop v. Gregory 182 v. Higgins 93 Dunn v. Parsons 417 Dtmphy v. Traveller Assn 138 Dupee v. Blake 415 Dupre, In re 82 Dupuy v. Leaveriworth 265 Durant v. Rojrers 269 Durfee v. R. R. Co 133 Durham v. Manrow. . . 407 XXX TABLE OF CASES. Page. Dnrkin V. Cobleigh 232 Dusenberry v. Hoyt 37 Dustan v. McAndrew 183 Dutch v. Warren 352 Dutton v. Morrison 253 v. Willner 24 Dwight v. Scovil 56, 59 Dyer v. Clark 253 v. Gibson 407 v. Homer 43 . Pendleton . . .335 E. Eager v. Commonwealth v. Crawford Eagle Bank v. Hathaway Earl of Kildare v. Eustace East Birmingham Co. v. Dennis . . East Hartford v. Hartford Bridge Co 140 East Tenn. R. R. Co. v. Hale 183 Eastern, etc., Ry. Co. v. Hawkes. 136 Eastman v. Meredith 148, 150 v. Moulton 226 Easton v. Courtwright 265 Eastwood v. Kenyon 100 Eaton v. B., etc., R. R. Co 85 v. Lvman 189 v. 'Wells 487 v. Winnie 437, 455 Eckles v. State 166 Eddy v. Davis 115 Edgerton v. Wolf 206 Edie v. E. I. Co 45 Edmonds' Case' 101 Edmund's Assn. v. Harper 412 Edwards v. Tracy 248 Eilenhecker v. Plymouth Co 79 ELbinsrer v. Armstrong 184 Eldred v. Hawes 50 Eldridge v. Rowe 113 Eliason v. Henshaw 94 Eliot v. St. Louis, etc., Ry. Co. ... 62 Elkins v. R. R. Co .* 137 Elkinton v. Booth .' 263 Ellicottville. etc., v. Buffalo, etc., R. R. Co. 429 Elliot v. Brown 433 Elliott v. Caldwell 109 v. Holbrook 266 v. Pybus 378 Ellis v. Andrews 455 v. Bray 394 v. Ellis 268 Elmore v. R. R. Co 66 Elton. Ex parte 255 Elwell v. Chamberlin 7 Ely v. Ely 231 Emerson v. Galloupe 23 Emerson v. Gaa Co 222 v. Senter 265 v. Slater 407 Emery v. Baltz 423, 427 Emmons v. Murray z06 Emslie, In re 33 Engster v. West 119 Enoch v. Mining & P. Co 189 Erwin v. Harris 370 v. Wilson 213 Espy v. Bank of Cincinnati '. 49 Essell v. Haywood 27 1 Estabrook v. Boyle 42 Estes v. Whipple 249 Esty v. Wilmot 447 Eureka' Co. v. Edwards 207 Evans v. Evans 195 .v. Ins. Co z3S Everett v. R. R. Co 75 Everman v. Robb 361 Ewen v. R. R. Co 187 Exchange Bank v. Nat. Bank..-.. 458 v. Rice 43 Exhaust Ventilator Co. v. Chic., etc., Ry. Co 112 Express Co. v. Kountze Bros .... 64 F. Fabens v. Bank 45S Faigley v. Stoneberger 208 Fairchild v. City of St. Paul 64 v. North Eastern, etc., Assn. ... 104 Fairthorne v. Weston 271, 272 Falk. Ex parte 388 Fall River Bank v. Willard - 56 Fanning v. Wilcox 306 Farlow v. Ellis 364 Farmer v. Robinson IS Farmers Bank v. Braden 422 v. Hathway 423 Farnam v. Davis 356 v. Feeley 441 Farnharn v. Pierce 202 Farnsworth v. Halstead 485 Farr v. Newman 327, 466 Farwell v. R. R. Co 13 Faulkner v. Hart 66 Fawcett v. Osborn 384 Faxon v. Hollis 220 Fay v. O'Neil 44 1 Fee v. Kimball 387 Felch v. Hooper 461 Feldstein, In re 32 Fellows v. Wyman 204 Felton v. Bissell 409 Ferguson v. Northern Bank 365 Fern v. Ctishinsr 253 Ferrero v. Bihrlmeyer 271 TABLE OF CASES. Page. Ferris v. People 177 Fertilizing Co. v. Hyde Park 127 Field v. Farrington 21 v. Schieftelin 327 v. West Orange 150 Fielding v. Waterhouse 416, 417 Filburn v. People's, etc., Co 438 Filby v. Miller 463 Fillieul v. Armstrong 109 Finch v. Pindon 480 Fink v. Cox 42 Finn v. Clark 369 Finney v. Apgar 390 v. Ins. Co 6 First Nat. Bank v. Bissell 5.21 ' v. Staake 30 First Nat. Bank of Toledo v. Shaw 399 First Nat., etc., v. Co 144 First Universalist Soc. V. Boland. 342 Fisher v. Boston 148 v. Essex Bank 140 v. Murray 268 v. Pender 260 v. Smith 310 Fitcjj v. Johnson 314 v. Newberry 69, 297 Flake v. Day 1 Flash v. Conn 145 Fletcher v. Ashburner 209 v. Rylands 444, 445 Flinn v. Bagley 143 Flower v. Pertii. R. R. Co 14 Fogg v. Blair 143 Foot v. Card 201 Forbes v. Scannell 265 Ford v. Ford 209, 320 v. R. R. Co 15, 16 v. Tiley 116 Fnrgotston v. Cragin 482 Foshay v. Riche 282 Foss v. Foss 193 v. Harbottle 138 Foster v. Bates 320 v. Dawber 52 v. Hall 235 v. Rockwell 8 v. Ropes 365 v. Smith 102 Foulkes v. R: R. Co 437 Fox v. Dawson 357 v. Hanburg 264 v. Ohio . 156 Foy v. Commonwealth 173 Frndley v. Ilvland 17 Frank v. Edwards 421 Frnnknm v. Earl of Falmouth. . . 285 Franklin v. Lee 191 v. Miller 113 Franklin B'k v. Cooper 424 I'asre. Franklin B'k v. Stevens 422 Franklin Infc. Co. v. Sefton 241 Franklin, etc., Ins. Co. v. Coates.. 240 Freakley v. Fox 52 Freaner v. Yingling 416, 418 Freedman'a Co. v. Earle 460 Freeholders, etc. v. Strader . ..... 148 Freeman v. Glens Falls Co...... 17 v. Ins. Co 239 v. Nichols 101 Freeman's Bank v. Savery 261 French v. Burns 332 v. Jarvis 55 v. Marstin 317 v. Pearce 305 v. Styring 243 Friberg v. Donovan 411 Friedman, Matter of 33 Frisbee v. Ins. Co 238 Frisli v. Miller tz6 Fritz v. R. R. Co 437 Frost v. Woodruff 382 Froude v. Bishop 415 Fry v. Plait 394 Fuchs v. Koerner 185 Fulkerson v. Holmes 225 Fuller v. Paige 295 Fuller Co. v. Doyle 421 Fulton v. Robinson 394 v. Whitney 463 Furbjsh v. Goodnow 405 Furnas v. Friday 453 Fursdon v. Weeks 28(5 Furse & Co., In re 33 Furst & Co. v. Black 404 G. Gaile v. Betts 289 Gaillard v. Gaillard 196 Gaines v. Relf 230 Gale v. N. Y. C., etc., R. R. Co. . 183 Galliard v. Laxton 449 Galvin v. State 162 Gammon v. Howe 182 Gannon v. Hargadon 319 v. R. R. Co 14 Gardner v. Alexander 283 v. Ogden 23 v. Rowe 461 Garmett v. Blodgett 408 Garr v. Selden 440 Garves v. L. S. R. R. Co 65 Garvin v. Williams 322 Gaslnveiler v. R. R. Co 0,5 Gates v. Beecher 59 v. Fisk 266 v. Graham 260 Gaussen v. Morton 19 Gautret v. Egerton 437 xxxa TABLE OF CASES. Page. Gaylord, In re 36 Gay lord Mfg. Co. v. Allen 370 Geismer v. L. I., etc., R. R. Co. . . 64 Genl. Steam Nav. Co. v. Rolt 421 George v. Gobey 13 v. Jennings 438 v. Tate 260 Georgia -v. Atkins 87 Georgia Handle Co., In re 33 German-American Ins. Co. v. Etherton 246 Gerrish v. New, etc., Inst 459 Gerson, In re 29 Gibbons v. Pepper 283, 288 Gibbs v. Blanchard 405 v. Guild 470 Gibson v. Cramage 112 v. Erie Ry. Co 16 Giddings v. Giddings 42 Gifford v. Corrigan 104 Gilbert v. Parker 282 Gilchrist v. Brande 270 Gile v. Stevens 179 Giles v. State 159 Giles Lithographic, etc., Co. v. Chase 372 Gilhooley v. Washington 335 Gillet v. Maynard 356 Gillham v. R. R. Co 319 Gillilan v. Ins. Co 268 Oilman v. Noyes 451 Gilmore v. Driscoll 318 Gilshannon v. R. R. Co 72 Gladding v. Ins. Co 241, 242, 243 Glade v. Ins. Co 237 Glasscock \ Smith 265 Gleason v. Hamilton . . 232 v. R. R. Co 73 Globe Bank v. Small 403 Glyn Mills v. East & West Ind. Dock Co : 386 Goddard v. Binney 367, 390 v. Gardner 235 v. R. R. Co 73 Godfrey v. Godfrey 502 v. People 160 Golding Davis, Ex parte, 388 Gelding's Petition 204 Golson v. Brand 411 Gompertz v. Bartlett 350 Gooch v. Holmes 3D 1 Goodman v. Simonds 48 Goodchilil v. Pledge 283, 286 Goodrich v. Weston 230 Goodwin v. Clark 344 Goold v. Chapin 66 Goram v. Sweeting 282 Gordon v. Cannon 265 v. Ellis . . 291 Page. Gordon v. Maynard 55 Gorhain v. Inuis 250 Gossett v. Kent 251 Gough v. Goldsmith 439 Gould v. Cayuga Nat. Bank 214 Gould v. Eastern Ry. Co 310 v. Howell -. 383 v. Lasbury 287 Graf ton v. Cummings 394, 395 Graham v. R. R. Co 142 Grandin v. Grandin 100 Grand Rapids Co. v. Jarvis 85 Granite City Bank, In re 34 Grant v. Nat. Bank 33 v. Norway 3 Gratitudine, The 71, 447 Grattan v. Ins. Co 240 Gravers's Appeal 20 Graves v. Dolphin : 339 v. Hall 265 v. Lebanon Nat. Bk 422 v. Steamboat Co 6& v. Weld 333 Gray v. Agnew 384 v. Green 4 252 v. Hill 351 v. Moore 119 Great Western, etc., Co. v. Tucker. 185 Green, In re 2 i Green v. Chapman 258 v. Gilbert 354 v. Goddard 433 v. Humphrey 385 v. Omnibus Co 130 v. Spicer 339 Greene v. Dennis 327 v. Graham 252 v. Greene 466- v. Merriam 393 Greenfield Bank v. Crafts 5 v. Leavitt 446 v. Stowell 4& Greenly v. Wilcocks 311 Greenwood v. Freight Co 132 Gregory v. Lee ... . . 2(>5 v. Paul 198- v. Pierce 197 v. Schoewell 373 Gridley v. Andrews 328 Griffin" v. Goff 57 Griffith v. Buck 253 v. Fowler 294 Griffiths v. Earl of Dudley 16 Gripe-; v. Austin 69, 351 Grinnell v. Wells 203 Grissler. In re 33 Griswold v. R. R. Co 72 v. Washington 271 Grocers' Bank v. Penfield. . 42; TABLE OF CASES. XXXlll Grove v. Vaii Duyne 449 Grover's Appeal 20 Grube v. Wells 3uo Grymes v. Buweren 330 Guardian, etc., Ins. Co. v. Hogan. 241 Guild v. Butler 418 Guillon v. Peterson 270 Gunning v. Royal 100 Gunnis v. Weigley 413 Gurney v. Howe 373 v. \Vomersley 349, 350 Guthrie v. Jones...*. 330 Guy v. Mead '. . . 227 Gwinn v. Rocker 253 Gwynn v. Duffield 269 H. Haas v. Myers 04 Haase v. State 159 Hackettstown v. Schwack- hamer 147, 150 Haddock v. Haddock 195 Hagey v. Hill 53 Hagerty v. Powers 203 Haggerty v. McCanna 35G Halm v. Hutchinson : . . 339 Haigh v. Brooks 99 Haight v. Ins. Co 241, 243 v. Pearson 23 Hail v. Fuller 438 Haines v. Guthrie 225 v. Tucker 115 Haire v. Wilson 429 Haiton v. Jeffreys 279 Hale. In re 37 Hale v. Gerrish 101 Halifax v. Lyle 44 Halifax Union v. Wheelwright.. 48 Hall v. Diamond 38G v. Hall 203, 272, 322 v. Lanning 2G7 v. Xewcomb 46 v. Olney 487 v. Smith 409, 410 v. Steamboat Co 73 v. Thayer 414 Hallen v. Runder 329 Hallenbeck v. More 270 Hallefs Estate. In re 31 Halliday v. Holgate . . . 297 Hallock v. Ins. Co 94 Halpin v. Ins. Co 491 Halsey v. Sinebaugh 236 Hal*tP Highnm v. Riri 42 42!) 284 4J;> 261 393 333 25 51 227 324 382 37 1 234 151 35O 270 1 1.1 445 389- 454 467 110 45 ;> 504 3^2 102 32 31:5 462 265 196 416 379 39!> 354 342 64 337 251 417 41S 49 420 191 487 245 8f> 97 164 120 468 68 500 TABLE OF CASES. xxxv Page. Hop kius v. Ensign 120 v. Grimshaw 344 v. Lee 183 v. Logan 103 Hopper's Will 322 Horn v. Ins. Co 237 v. Keteltas 331 v. Lewin 285 Horton's Appeal 271 Hoskinson V. Eliot 260 Hospes v. Car Co 14'J Hoste v. Pratt 345 Hough v. Land Co 135 v. Ry. Co 15, 1C Houahton v. Ins. Co 23S Hounsell v. Smyth 436, 437 Houser v. R. R. Co 14 Hoverson v. Noker 203 Howard v. Ames 50 v. Daly 116, 185 v. Sheward 3 Howatt v. Davis 380 Howe v. Kerr 250 v. Newmarch 11 v. Smith 393, 394 fIo\Te Machine Co. v. Farrington. 422 I Lowell v. Huyck 231 v. Leavitt 521 Howt Us v. Landore Steel Co 14 1 lowland v. Blake Co 440 [Joyt v. Ins. Co 240, 241 Hubbard v. Briggs 453, 454 v. Cummings 207 v. Hickman 348 v. Mosely 40 Hubert v. Moreau 395 Huchting v. Engal 205 Hud.Iart v. Rigby 29' Huclelson v. Armstrong 427 Hudnut v. Gardner 453 Hudson, In re 99 Hudson v. Granger 20 v. McCartney Ill Hudson R. Tel. Co. v. Water- vliet. etc., Co 490 Huffman v. Hughlett 353 Hughes v. Devlin . . . 252 v. Graves 305 Huish v. Philips 285 Humble v. Mitchell 391 Humboldt v. Long 152 Humphrey v. Clark 47 v. Ins. Co 244 Humphreys v. Bethily 289 Humphries v. Brogden 318 v. Parker 188 Hunt v. Gas Co 222, 229 v. Livermore 108 v. Roberts 423 Page. Hunt v. Rousmaniere 18, 212 gr. Wyman 362 Hunter v. Wright 36'i Huntington v. Attrill 145 Hurst v. Bell. . . : 362 v. Hurst 336 Huson v. Dale 188 Hutchins v. Bank 327 v. Hebbard 19 v. State Bank 293 Hutchinson v. Ford 361 Hutton v. Bulloch 17 Hyde v. Wrench 93 I. Imperial Ins. Co. v. Gunning. . . . 244 Inbusch v. Farwell 254 Indermaur v. Dames 437 Indiana Co. v. Herkimer 125 Indiana Ins. Co. v. Capehart 243 Indianapolis, etc., R. R. Co. v. Stables 186 Ingalls v. Bills 73 Ingersoll v. Ingersoll 195 Ingham v. Primrose "..... 51 Inglebright y. Hammond 362 Inglis v. Sailors, etc 46 J Insurance Co. v. Bailey 240 v. Davis 20 v. Ewing 237 v. Hillmon 227 v. Ins. Co 25 v. Johnson 239 v. Lathrop . ..228, 229 v. Martin 242 v. Messenger .... 459 v.. Mosley 228 v. Mowry 2o8 v. Schwenk 225 v. Sturges 241 International, etc., R. R. Co. v. Irvine 189 Iowa Lumber Co. v. Foster 123 Irvine v. Watson 17 Irwin v. Williar 121 Isherwood v. Whitmore 370 Isle Royal Mining Co. v. Hertin. . 356 Isler v.' Baker 263, 271 Isley v. Jewett 102 J. Jackson v. Bunnell 496 v. Decker 404 v. Ins. Co 243 v. Phillips 463 v. WSnne 193 v. Woodruff 305 Jacobs. In the Matter of 80, 81 Jacobus v. Rv. Co . . 72 XXXVI TABLE OF CASES. Page. James v. Adams 377 v. Campbell . 430 Janes. In re 27 Jarrett v. Martin 412 Jarvis v. Wilson. . .- 43 Jauretche v. Proctor 336 Jenkins v. French 327 v. Jenkins 192 v. State 164 Jenner v. Joliffe 230 Jenness v. Wendell 392 Jennings v. Bradeley 270 v. Lyons . .119, 354 Jerome Co. v. Loeb 497 Jewell v. Jewell 191 v. Mahood 447 v. Porter 199 Jewett v. New Haven 148 Johnson v. Allen 115, 370 v. Belden 329 v. Berlizheimer 265 v. Boston 10 v. Ins. Co 246 v. Johnson 4G8 v. Lawson 225 v. Lindsay 13 v. Phoenix Ins. Co 110 v. Rockwell 206 v. Steam Gauge Co 16 v. Van Epps 240 v. Walker Ill v. Whitman 458 Johnston v. Button 268 Jones v. Atkinson . . 6 v. Butler 271 v. Council Bluffs Bank 43 v. Gordon 48 v. Judd 354 v. Lock 459 v. Marsh 103 v. New Haven 149 v. Reese 340 v. Swayze 315 v. U. S 382 v. Yates 269 Jordan v. Dobbins . . . , 425 v. Harrison 495 v. Jordan 198 Josselyn v. Lacier 40 Judkins v. Ins. Co 246 Judson v. Western, etc., Corp. ... 64 Juniata Bank v. Hale 59 K. Kadish v. Young 117 Kane v. Bloodgood 470 Kansas Pac. R. R. Co. v. Peavey. 1C Kay v. R. R. Co 437 Keats v. Hugo . 318 Page. Kee v. State..-. 162 Keeler v. Dawson 204 v. Eastman 335 Kellog v. Scott 420 Kellogg Bridge Co. v. Hamilton. . .376 Kelly v. Baker 265 v. Bemis 450 v. Kelly . 195 v. Scott 250 Kelner v. Baxter 6 Ketchum v. McNamara 26 Kemp v. Falk 38S Kempner v. Cohn 95 Kendall, Ex parte 255, 257 Kendall v. Hamilton 256 v. Robertson 47 Kendrick v. Neil 266 Kennard v. George 198, 347 Kenoslia R. R. Co. v. Marsh 133 Kent v. Quicksilver Mining Co... 139 v. Waite 311 Kertschacke v. Ludwig 443 Ketchum, In re 270 Ketchum v. Buffalo 150 Kick v. Merry 98 Kiene v. Ruff 438 Kiff v. R. R. Co 63 Kilbide v. Moss 406 Kill v. Hollister 240 Kimball v. Newell 406 Kimberly v. Patchin 365 Kindt's Appeal 418 King v. Bates 383 v. Bushell 46J v. Ellor 40 v. ^lamilton 272 v. Jarman , 393 v. King 505 v. Leighton 264 v. Meade 225 v. Paterson, etc., Co 141 v. Sears 103 v. Summitt 406 v. Talbot 467 v. Wartelle 252 v. Welcome 354 Kingman v. Holmquist 365 Kinney v. B. & O.. etc., Assn ' 108 Kinnick v. Chicago, etc., Ry. Co. 63 Kinsley v. R. R. Co 74 Kip v." Bank 466 Kirby v. Foster 170 Kirk* v. Hiatt 266 Kirkland v. Dinsmpre 65 Kittredge v. Folsom 32'1 Kleinhaus v. Generous 261 Klum v. State 15S Knapp v. Abell 217 v. Salsbury 283 TABLE OF CASES. XXXYll Page. Knight v. Browne 338 v. Clark 9 v. R. R. Co 69 Knisley v. Pratt. . . . . . 17 Knowles v. Bovill 351 Knox v. Gye 252 v. N. Y. City 159 Knox County v. Aspinwall 152 Kohl v. I". S 84 Konig v. Bayard 44 Kountz v. Kirkpatrick 184 Kortlander v. Elston 408 Krell v. Codman 97 Krulder v. Ellison....'. 68 Krumm v. Beach 214 Kuns' Exec. v. Young 413 Kuntz v. Young 36 Kutli v. Goldson 453 ; L. Lacey v. Reynolds 292 Ladd v. R. R. Co 15 Ladd's Will 325 Ladenburg v. Commercial Bank. . 501 Lakenian v. Mountstephen 406 Lamb v. Crafts -390 v. Crosland 304 v. Matthews 54 Lamberton v. Ins. Co 243 Lamkin v. Douglass 501 Landis v. Rover 102 Lane v. Ironmonger. 201 Langdon v. Astor 32S Lamro. Ex parte 177 Lanse v. Lewi 504 Lanmg v. R. R. Co 14 Lansd'ale v. Cox 410 Lansing v. Ensign. . 482 Laramie County v. Albany County 14(5 Larison v. Larison 200 Lary v. R. R. Co 430 Lasala v. Holbrook 318 Lash v. Parlin 394 Lasher v. Williamson 412 Lassen v. Mitchell .' 377 Lathrop v. Harlow 4 Latter v. Braddell 431 Latrobe v. Mayor 467 Laughlin v. Eaton 201 Lavarenz v. R. R. Co 221 Law v. Grant 454, 455 Lawlpy v. Hooper 213 Lawrence, Re 259, 260, 265 Lawrence v. Barker 236 v. Bassett 41 v. Fox 104 v. Kimball 227 v. Miller 116 v. R. R. Co.. 65 Page. Lawrence v. State 168 v. Shipman 12 Lazarus v. Cowie 56 Lea v. Ship Alexander 71 Leach v. Thomas 291 Leake v. Robinson 345 Leakey v. Maupin 198 Leas v. Walls 48 Leather v. Simpson 349 Leavitt v. Fletcher 107 v. Leavitt 192 Leazure v. Hillegas 135 Lee v. Dick 402 v. Griffin 389, 390 v. Hills 394 v. Ins. Co 243 v. Lanahan 197 v. Yandell 413 Lee, etc. v. Cram : '383 Lee Sing, In re 83 Legg v. Evans 289 Leggett v. Hyde 248 v. .New Jersey, etc., Co.. 128 Leishman v. White 335 Leisy v. Hardin 90 Leke's, Sir Francis, Case 282 Leland, Re 257 Lennox v. Murphy 402 Lente v. Clarke 394 Leonard v. Ins. .Co 241 v. Leonard 311 v. Poole 121 v. Vredenburgh 407 Lerned v. Morrill 309 Le Roy v. Ins. Co 141 Leroy v. Johnson 261 Lesassie* v. Southwestern 387 Lesassier v. Southwestern 38 1 Lester v. East. 363 v. Garland 333 Leverson v. Lane 261 Levy v. Levy 463 Lewis v. Alcock 285 v. Browning 94 v. Car Co 62 v. Chapman 440 v. Darling 328 v. Douglass 500 v. Greider 378, 379 v. Ins. Co 24 v. Long Isl. R. R. Co 221 v. Palmer 409 v. Seifert 15 Lickbarrow v. Mason 386 Lidderdale v. Robinson 409 Lincoln v. Boston 14') Lindon v. Eldred 370 Linsham v. Essrleston 363 Link v. Sheldon 189 XXXViil TABLE OF CASES. Page. Linton v. Hurley 269 Lippincott v. Ashfield 406 Litclifield, Re 255 Litchfield v. Cudworth 198 v. Hutchinson ... .... 453 Little Miami R. R. Co. v. Stevens. 15 Little v. Slackford 40 Livermore v. Batchelder 445 Liverpool, etc. v. Massachusetts.. 123 Livingston v. Arnoux 227 v. Livingston 462 v. Rawyards Coal Co. 295 Lloyd's v. Harper 42C, 427 Lloyd v. Lee 197 Loan Ass'n v. Topeka 86 Locke v. Priestly, etc., Co 365 Lock wood y. Levick 24 Lodge v. Fendal 256 Loeb v. Flash 385 v. Peters 387 Logansport v. Justice 189 Logendyke v. Logendyke 200 Long v. Blackall 341 v. Majestro 272 Longhurst v. Ins. Co 245 Loomis v. Ins. Co 240 Loop v. Litchfield 436 Lord v. Bunn 339 Loring v. Brackett 267 Losee v. Buchanan 445 v. Clute .' . . 436 v. Dunkin 51 Lothrop v. Adams 269 Louisiana v. Wood 352 Louisiana Nat. Bank v. Citizens' Bank 49 Louisville Trust Co. v. Comingor. 38 Love v. Carpenter 272 Lovcioy v. Spafford 262 Lovett v. Gillender 338 Lowe v. Beckwith 404 v. Waller 47, Lowell v. Boston 86 Lowell, City of, v. Hadley 82 Lowman v. Yates 416 Lucas v. Campbell 381 Lundy v. R. R. Co 75 Lupton v. Lupton 328 Lyall v. Higgins 282 Lynch v. Knight 439 v. Smith 400 Lyon v. Lyman 229 v. Summers 43 v. Travellers' Co 239 Lyster v. Lyster 196 Lytle v. Lytle 194 M. M. T. F. Tns. Co. v. Gusdorf 243 MacCutcheon v. Ingraham.. . 239 MacDowell v. MacDowell 272 Mace v. Wells 414 Mackin v. People 157 Mackintosh v. Trotter 32& Maclean v. Dunn 5 Macleay, In re 337 Macon,*etc., R. R. Co. v. Johnson. 187 Macrow v. R. R. Co 74 Maddison v. Alderson 407 Maegher v. Driscoll 181 Magee v. Billingsley 364 Mahaska, County of, v. Ingalls. . . 227 Mahurin v. Pearson 412. Maine v. Peck . .' 278, 27;) Maisenbacker v. Cc?ncordia Soc. . . 181 Malbon v. Southard 46 Malcolmson v. O'Dea 226 Malone v. Hathaway 15- Manck v. Manck 264 Mandlebaum v. McDonnell 337 Manning v. Hogan 15 Mansfield v. Gordon 206 Marble v. Worcester 180 Maria y. State 161 Marine Nat.. Bank v. Nat. City Bank 49- Marlett v. Jackman 263 Marquand v. Manufacturing Co.. 271 Marqueze v. Caldwell 395 Marsden v. Moore 106 Marsh, In re 31 Marsh v. Bulteel 280 v. Collnett . . * 230 v. Falkers 453 v. Russell 120 v. Whitmore 468 Marshall v. Green 392 v. Johnson 272 v. Oakcs 201 v. Pontiac, etc.,R. R. Co. 74 v. Wellwood 445 Marston v. Allen 44 v. Baldwin 383 v. Fox 32-> v. Norton.' 19H Martin, The D. R 72 Martin v. Chauntry II v. Crump 2ol v. Ellerbe's Adm'r 408 v. Searles 202 v. Taylor .417 Martindale v.' Smith 364 Marwick, In re 258 Marx. In re 36 Maryland v. Baldwin 191 Marzion v. Pioche. . 19 Mason v. Farnell . 284, 288 v. Powell 435 Massey's Appeal 327 Master v. Miller. . 48- TABLE OF CASES. xxxix Page. Matthews v. Dare 268 v. L. S. T. Co 452 Matthison v. Clarke 270 Mattison v. Westcott 390 Maude, Ex parte 259 Maximilian v. New York 148 May v. West U. Tel. Co 267 Mayer v. Childs 371 v. Heidelbach 48 Mayhew v. Crickett 416 Maynard v. Buck 223 v. Cleaves 467 v. Hill 193 v. Maynard 315 v. R. R. Co 65 Mayor v. Ray 150 v. Richardson 285 Mayor, etc. v. Miln 90 McAdam v. Walbrau 503 McAllister v. R. R. Co 63 McArthur v. Sears 62 McCaleb v. Price 98 McCall v. Taylor 41 McCleary v. Ellis 339 McClure v. Briggs 112 McClurg v. Barcalow 192 v. Howard 266 v. Terry 190 McCobb v. Richardson 212 M'C'ombie v. Davies 440 McCord v. People 173 McC'ormick v. Basal 117 McCoy v. Danley 319 v. Ins. Co 242 McCracken v. West 454 McCulloch v. Eagle Ins. Co 94 v. Maryland 87 McCullough v. Commonwealth... 176 McDaniel v. Wood 264 McDaniels v. Flower Brook Mfg. Co 409 McDonald v. Williams 142, 143 McDougal v. Calef 403 McDuffee v. R. R. Co 70 McElroy v. Buck 394 McElvey v. Lewis 505 McGehe'e v. State 161 McGrath v. Clark 48 v. Merwin 448 v. State 165 MeGraw, In re 136 McCuire v. Bosworth -. . . 46 McKenry v. Jewett 496 Mdlroy v. Adams 269 Mchityre v. Park 7 McKee v. Ins. Co. . 240 McKeon v. Citizens R. R. Co 181 McKinny v. Bradley. . 383 McKinnon v. Bliss/. 230 McKnight v. Bradley 412 v. Walsh 469 McKown v. Hunter 429 McLaughlin v. Cowley. . . . , 440 McLean, Re 256 McLeod v. Jones 434 McManus v. Cassidy. 353 McMaster v. Ins. Co 232 McMillan v. An;cs 97 v! Bull's Head Bk 402 McXair v. State 163 McXeal v. Woods 164 McNeil v. Bank 140 McSherry v. Brooks 258 Mead v. Wheeler 182 v. Young 49 Meadow Dam Co. v. Gray 133 Mears v. Waples 397 Mechanics' Bank v. Bank 57 Meech v. Allen 255 Meehan v. Valentine 248 Meek v. Briggs 467 Meeke v. Olpherta 467 Meers v. Carr 396 Meier v. Penn. R. R. Co 73 Meincke v. Falk 390 Meister v. Moore 191 Melville v. Brown 295 Menagh v. Wliitwell 253 Merchants, etc., Bank v. Hibbard. 365 Meredith v. Reed 452 Merlan v. Funck 69 Merrett v. Ins. Co 239 Merriam v. Hassam 470 Merrill v. Smith 200 v. Trust Co 1 Merrills v. Swift 1 315 Merriman, In re 37 Mertens, In re' 31 Mertens v. Winnington 44 Merwin v. Austin 410 Messenger v. R. R. Co 61, 70 Messer v. Smyth 200 v. Swan ' 411 Metoalf v. Barber 33 Methodist Church v. Clark 462 v. Pickett 125 Meyer v. Amidon 453 Michigan SS. Co. v. Am. Bonding Co 416 Middleton v. Griffith 44 Middletown Bank V. Magill 146 Midland R. R. Co. v. Taylor 269 Mielenz v. Quasdorf 43S M. I. F. Ins. Co. v. Gusdorf 243 Milhory v. Storer 420 Miles v. Xew Zealand, etc., Co.. 100 v. Pennock 255 Millard v. Baldwin.. . 279 TABLE OF CASES. Page. Miller v. Butler . 438 v. David 439 v. Finley 47 v. Harris 252 v. Ins. Co 241 v. Miller 204 v. Race 47 v. Stout 408 v. Thompson 384 Milliken v. Warren 380 Milliman v. Meher 361 Millford v. Gibbs 340 Mills v. Bank 59 v. Brooklyn 149 v. Gleason 150 v. Northern Ry. Co 142 v. Wyman 102 Milroy v. Lord 460 Miltimore v. Chicago, etc., Ry. Co. 63 Mima Queen v. Hepburn 224 Miner v. Detroit Post 440 Minett v. Forrester 20 Minot v. Russ 49 Mitchell v. Ryan 314, 315 v. Seipel 311 v. Warner 312 v. Wellman 382 Mix v. Shattuck 266 Mobile, etc., Co. v. Nicholas 141 Moffit v. Roche 268 Mogsrridge v. Jones 10^ Mole v. Wallis 289 Moline Co. v. Rummell 250 Molson's Bank v. Tuslay 423 Monprivatt v. Smith 290 Monument, etc., Co. v. Globe Wks 136 Moody v. Brown 367 v. Rowell 229 v. Walker 357 v. Whitney 185 v. Wright 362 Mooney v. Miller 454 Moore v. Bank 440 v. Graves 204 v. House 104 v. Piercy 383 v. Stevenson 197, 429 v. Watson 409 Moreau v. Saffarans 251 Morey v. Fitzgerald 443 Morgan v. Congdon , 296 v. Graff 351 v. Marquis 264 v. Richardson 268 Morley v. Attenborough 350 v. Culverwell 55 Morris v. Monroe 100 v. Platt 431 Mormon v. Morrison 196 Page. Morrison v. Perry 262 Morse v. Aldrich 314 v. Carpenter 251 v. Copeland 317, 31!) v. R. R. Co 222 Mortimer v. Mortimer 190 Morton v. Folger 224 Moses v. Banker 379 v. Lawrence Co. Bank 405 Moss v. Aver ill 12 T Mossellcr v. Deaver. 435 Mott v. Oppenheimer 314 Mound v. Barker 413 Mouse's Case 447 Mower v. Leicester 148 Mowry v. Ins. Co 230 Mueller, In re 3!) Mueller ". Nugent 38 Mugler v. Kansas 80, 82 Mulford v. Shepard 47 Mulgrave v. Ogden 44(5 Mulligan, In re 31 Mulligan v. R. R. Co 6(5 Mulliner v. Florence 290 Mumma v. Potomac Co 132 Mundy v. Wight 433 Munger v. Munger 203 Munn v. Illinois Si Munshower v. State 21<3 Murchie v. Cornell 37") Murich v. Wright 381 Murphy v. Jack 500, 501 Murray v. Barlee 193 v. Hoboken Land Co 78 Muschamp v. R. R. Co 66 Musgrave v. Dickson 408 Mutual Life Ins. Co. v. Hunt 91 Mutual Reserve, etc. v. Beatty. . . 37 Myers v. Meinrath 37-'> N. Nachman, In re 32 Naltner v. Dolan 21 Nash v. Towne 352 National Bank v. Hall 93, 95 v. Merchants' Nat. Bank 367 v. Thomas 261 National, etc. v. Landon 126 National Park Bank v. German, etc., Co 127 National Park Bank v. Ninth Nat. Bank 44, 49 Naumberg v. Young 232 Needles v. Needles 198 NeftV Appeal 417 Nelson v. First Nat. Bank 414 Nepean v. Knight 219 Nevin v. P. P. C..Co.. 61 TABLE OF CASES. xli rage. Kevins v. Peoria 150 v. Townsend 257 Newberry v. Furnival 377 Newcomb v. Raynor 52 v. Williams 320 Newell v. Nicholas 219 New* England, etc., Ins. Co. v. Schettler 242 New Jersey, etc. v. Fire Com- missioners 151 N. 0. Gas Co. v. La. Light Co ... 89 Newhall v. Vargas 64, 385 Newman v. Newman 465 Newton v. Chorlton 410 Newton v. Clarke 324 v. Harland 435 v. Heaton 267 v. Seamans' Friend So- ciety ... :'.-. 323 NCAV York, etc., R. R. Co. v. Bristol 80 N. Y. Econom. Printing Co., In re 30 N. Y., etc., Co. v. Armstrong .... 245 N. Y., etc., Ins. Co. v. Ins. Co 243 N. Y., etc., R. R. Co. v. Schuyler. 3 N. Y. Exchg. Bk. v. Jones. .. 418 N. Y. Land Co. v. Chapman 453 New York L. Ins. Co. v. Fletcher. 242 N. Y. Tunnel Co., Matter of. . .28, 37 Niblo v. Binsse 354 Nichols v. Commonwealth 170 v. Eaton 340 v. Marsland 444 v. Steamship Co 117 v. Webb 227 Nicl-ells v. Atherstane 308 Nic'.lous v. Dahn 251 NoV.lo v. Smith 294 Noel v. Ewing 194 Nolan v. Whitney Ill Noodling v. Knickerbocker 269 Noonan v. Orton 267 Norman v. Westcombe 290 Norrington v. Wright. .. 114, 370, 382 Northern Ins. Co. v. Wright 404 North v. Mendel 396 North Bank v. Abbott 224 v. Porter Township. 152 North Brookfield v. Warren 225 Northrop v. Graves 347 Northwestern, etc. v. Shaw 135 Norton v. Mallory 461 Norway Plains Co. v. R. R. Co.. . 66 Norwich v. Breed 436 v. Hubbard ... -. 333 Noyes Bros., In re 29 Noyes v. Colby 442 v. Ward 316 Nutter v. Wheeier 363 Nutting v. R. R. Co 66 0. Page. Oakes v. Weller 402 Gates v. Nat. Bank 4, 7 O'Brien v. Gilchrist 70 v. Jones 378., 379 v. R. R. Co 75 v. Young 340 O'Connor v. Hurley 356 v. Majoribanks 235 Odom v. Odom 195 O'Donnell v. R. R. Co . 14 Offord v. Davies 42-> Ogburn v. Connor 319 Ogden v. Saunders 26 v. Ins. Co 'j Ogg v. Shuter 387 Ohio Thresher Co. v. Hensel 413 Old Colony R. R. Co. v. Evans. . . 183 Oldtown, etc., R. R. Co. v. Veazie. 133 Oliver v. Worcester 147, 150 Olleman v. Reagan. 256 Ollive v. Booker 110 Olmstead v. Beale 113 v. Winsted Bank 236 O'Neill v. Mass. Ben. Ass'n 110 Omichund v. Barker 234 Ormsbee v. Howe 100 O'Rourke v. R. R. Co 67 Ortman v. Weaver 93 Orton v. Scofield 23 Osborn v. Cunningham. 410 v. Robbins 413 Ostrander v. Conkey 480 Ouimit v. Jienshaw <4 Overfield v. Christie 30G Overman v. Sanborn 3L> Overman's Appeal 340 Overton v. Tyler 41 Owen v. Knight 284 Owings v. Hull 217 Oxenham v. Clapp 325 Oxford Bank v. Haynes 57 Oxley v. Lane 339 v. Watts 44S P. Packard v. Getman 446 Paddleford v. Thacher 415 Paddock v. Wells 192 Page v. Morgan 393 Page's Estate 209 Paige v. Cagwin 220 v. O'Neal 397, 463 Paine v. C. V. R. R. Co 51- v. Stewart 145 Palmer v. Gould 2U v. Hussey 37 Panama Tel. Co. v. India Rubber Co 25 Parcell v. McComber 1 ' 3 Parfitt v. Lawless. . 322 xlii TABLE OF CASES. Page. Park Bros. & Co. v. Blodgett & C. Co 213 Parke v. Frank .- 18 v. Koser 49 Parker v. Baxter 364 v. Brancher 21, 297 v. Canfield 243 v. Foote 304, 318 v. Macomber 264 v. Moore 461 v. Scott 355 v. Shackelford 180 v. Smith 20 v. Stroud 56, 57 Parks v. Hall 380 Parsons v. Harrold 418 v. Hayes ... .-..." 139 v. Joseph 139 Parton v. Hervey 191 Passinger v. Thorburn 184 Patchin v. Biggerstoff 384 Patmor v. Haggard 405 Patten v. Deshon 313 Patten's Appeal 385 Patterson v. Patterson 355 Paul v. Detroit 85 v. Virginia 76, 124 Paulding v. Chrome Co 142 Pauli v. Commonwealth 175 Paxson v. Sweet 82 Payne v. People 168 Peacock v. Peacock 270 v. Rhodes * ' 47 Pearce v. Chamberlain 271 v. Hooper 231 Pearks v. Moseley 345 Pearson v. Dolman 337 v. Pearson 193 v. The Commercial, etc., Co 94 Pease, Re 255 Pease v. Cole 261 v. Pease 197 v. Smith ... 446 Peck v. Peck 190 Peek v. Gurney - 454 Peirce v. Weber 7 Pelton v. Plainer 216 v. R. R. Co 67 Pembina, etc., Co. v. Penn.76, 77, 79 Pence v. State 169 Pendlebury v. Walker 410 Penn v. Lord Baltimore 212 Pennington v. Meeks 429 Pennsylvania Coal Co. v. Sander- son" 179 Pentz v. Stanton 18 People v. Belden 167 v. Call .167 People v. Cook 155, 433 v. Cotteral 164 v. Croswell 158 v. Davis 225 v. Detroit 147 v. Dickie -. . . 175 v. Haynes 173, 174 v. Ins. Co 244 v. Johnson '171 v. Jones lot v. Kelly 157. 16J v. Marx . . SI v. McElvaine 22!) v. McGowan 178 v. McKane 50! v. Moran 154 v. O'Brien 132 v. O'Xeil 472 v. Peacock 175 v. Richards 160 v. Roby 13 v. Smith 84 v. Thomas 172 v. Thompson 103 v. Township Board 23 v. Wadsworth 171 v. Warren 44') v. Wiley 168 v. Williams 161 v. Woodward 161) People ex rel. Cook v. Becker .... 500 Percy v. Millaudon 128 Perham v. Coney 446 Perkins v. Goodman 405 v. Ladd 326 Pernam v. Wead 30'J Perry v. Keene .' 86 Peters v. Company 460 Peterson v. Russell -. . 401 Peto v. Reynolds 41 Pettee v. Appleton 243 Pettengill v. Porter 311 Phelps v. Conant -. . . 4(iS v. Morrison 463 Phila., etc., R. R. Co. v. Cowell . . 8 Philippi v. Philippi 47<) Phillips v. Barnet 200 v. Earle (! 5 v. Foxall 42:J v. People 15!> v. Phillips 40.", Philpot v. Briant 5'2, 53 Phipps v. Ennismore 338 Phoenix Ins. Co. y. Bailey 244 v. Hoffheimer . . 244 Picken v. Matthews 345 Pickersgill v. Lahens ... 427 Pidcock v. Bishop 424 Pierce v. Brown 332 . TABLE or CASES. xliii Page. Pierce v. Burnham 198 v. Cooley 382 v. Dyer 317 v. Faunce 463 v. McClellan 252 Piggott's Case 280 Pigot's Case 231 Pike v. Hanson 441 Pinches v. Church 353 Pinckney v. Dambmann 117 Pitts v. Lancaster Mills 319 Pleasants v. Pendleton 365 Plimpton v. Bigelow 490 Plumley v. Massachusetts 90 Plymouth v. Carver 314 Polak v. Everett 418, 419 Poland v. Brownell 454 Pollard v. Lyon 438, 439 Pollen v. Brewer 435 Pollock v. Cohen . . ; 6 Pomerov v. Benton 272 Pond v. R. R. Co 142 Poole v. Webster 1 Poole's Case 329 Pooley v. Driver 249 Poorman v. Mills 48 Pope v. Allis 377 v. Town of Union 316 Port v. Port 191 Portage v. Cole 106 Porter v. Dunn 353 v. Powell 203 Portsmouth v. Portsmouth 193 Potter v. Couch 336, 337 Potts v. R. R. Co 69 Powell v. Maguire 259 v. Myers ... 67 v. Penn 80, 82 Powers v. Davenport 64 v. Russell 217 Pratt v. Gardner 448 v. Page 262 v. Pratt 140 v. Sweetser 317 Prather v. Smith' 414 Pray v. Mitchell 391 Presbyterian Church v. Cooper ... 99 Prescott v. Locke 390 v. Norris 205 v. White 317 President, etc. v. Chilicothe. . . . 150 v. Willis 45 Preston v. Bowmar 309 Prettyman v. Lawrence 290 Prevost v. Gratz 470 Price v. Durin 396 v. Furman 207 v. Xeal 49, 349 v. R. R. Co 67 Page. Price v. Sharp 55 v. Torrington 226, 236 Prince v. Hazelton 321 Pritchard v. Hewitt 189 Proctor v. Adams 444 v. Jones .392, 393 Prout v. Pittsfield Fire District. . 100 Pullen v. Pullen 236 Punderson v. Brown 333 Purdy v. Powers 269 Putnam v. Field 463 v. Ins. Co. 242 v. Schuyler 413 v. Street Ry. Co 72, 73 v. Town 203 v. Woodbury 97 Pye, Ex parts 453 Q. Queen v. Manning 219 Quimby v. R. R. Co '. 72 Quin v. Hill 355 R. R. R. Co. v. Allerton 139 v. Am. Oil Works 69 v. Backman 65 v. Barron 187 v. Baugh 15 v. Bolton 14 v. Brooks 72 v. Gary ............. 125 v. Converse 221 y. Cowell 8 v. Derby 11 v. Flexman 73 v. Fraloff 74 v. Gage 70 y. Hanning 12 v. Hawthorne ... .... 222 v. Hazen 64 v. Hummell 437 v. Hutchins 295 v. Jenkins 69 v. Lewis It v. Lockwood 65, 68 v. Maris 66 v. Marseilles 12S v. McDaniels 22-'! v. McGown . . . 72 v. Morrison 65, 74 v. Nolan 469 v. O'Brien 228 v. Pennell 187 v. People 70 v. Quigley 130 v. Rafferty 437 v. Robbina 223 v. Rogers 75 xliv TABLE OF CASES. Page. R. R. Co. v. Ross 15 v. -Shea 63 v. Smith 437 v. Spangler 16 v. Stevens 72 v. Voelker 221 v. Wynn 65 Radley v. R. R. Co , 452 Rafl'erty v. People 162 Raffles v. Wichelhaus 95, 373 Ragan v. Aiken 70 Ranelaugh v. Hayes 412 Ranson v. Mack 60 Rapier, In re 82 Rawls v. Ins. Co 'L 240 Rayburn v. Comstock 117 Raymond v. Fitch 326 Raynay v. Alexander 105 Raynes v. Bennett 201 Read v. Coker 430 v. Edwards 44.3 v. Legard 201 Read's Case 32o Reckly v. Tenbroeck 379 Redd v. Burrus 361 Redfield v. Tegg 23 Redington v. Woods. . 49 Reed v. Phila., etc., R. R. Co 36G v. State 167, 1G8 v. Wash. Ins. Co 103 Rees v. Berrington 415 Reese v. U. S 421 Regina v. Baldry 220 v. Bryan 172 v. Buckmaster 166 v. Bunce 166 v. Case 163 v. Closs 174 v. Dudley 154 v. Eagleton . . . . .' 173 v. Edwards 163 v. Finkelstein 175 v. Jones 173 v. Kenny 169 v. Kenrick . 160 v. Manning 219 v. Masters 167 v. Mayers 163 v. Morgan 224 v. Rose 154, 433 v. Rowton 223 v. Sampson 172 v. Stephens 13 v. Thurborn 167 v. Townley 168 v. Watts 168 v. West 168 v. Wiley 174 Reherd v. Clem. . 362 Page. Reichenback v. Spethmann 501 Reif v. Paige 97 Reilly v. Dodge 427 Reinheimer v. Hemingway 254 Relyea v. Mill Co 70 Remick v. Sandford 393 Remy v. Olds 117 Reserve, etc., Co. v. Kane 240 Respublica v. Malin 154 Reynolds v. Hussey 438 v. Manning 224 v. R. R. Co 61 v. Reynolds 192, 324 Rex v. Barnard 172 v. Dickinson 169 v. Gould 170 v. Harringworth 231 v. Isaac 163 v. Knollys 279 v. Murray 167 v. Napper 170 v. Pitman 16tf v. Walsh 16'3 v. Watson 230 v. Webster 168 v. Wheatley ; 153 v. Whitehead *. 160 v. Williams 172 v. Wills 169 Rhodes v. Amsinck 254' v. Blackiston 466 v. Forwood 24 Rialto, The 71 Rice v. Doniphan 267 v. State 174 v. Stearns 45 v. Wood . 23 Richards v. Frankum 284 Richardson v. Anthony 434 v. Humphreys 32S v. Merritt 412 v. R. R. Co 320 v. Richardson 323 Richmond's Appeal 322 Ricker v. Cross 363 Rider v. Bagley 505 v. Kelley 367 Riggs v. Riggs 324 v. Tayloe 231 Riker v. Sprague Mfg. Co 41 Ring v. Hardwick 343 Rippy v. State 432 Rivers v. Augusta 149 Robbins v. Robbins 197, 461 Roberts v. Graham 18S v. Hawkins '. 40 1 v. Lane .50 v. State 162 Robertson v. Deatherajre. . . 408 TABLE OF CASES. xlv Page. Robinson, Ex parte 157 Robinson v. Baker 69, 297 v. Crowder 265 v. Ins. Co 240 v. Jarvis 23 v. Lyman 50 v. Mollett 22 v. Pogue 360 v. Ray ley 289 v. Randolph 339 v. Skipworth 384 v. Walter 290 v. Weeks 207 Robson v. Drummond 267 Roby v. Smith 77 Rochester White Lead Co. v. Rochester 150 Rockford, etc., R. R. Co. v. Raf- ferty .' 437 Rockwell v. Taylor 228 v. Wilder 258 Rodrian v. R. R. Co 221 Roe d. Hunter v. Galliers 336 Roe v. Tranmer 309 Roeber, In re 33 Rogers v. Custance 290 v. Gallagher 55 v. Maddox 120 v. Verona 487 v. Woodruff 382 Rohrbach v. Ins. Co 239 Rolland v. Commonwealth 164 Rombach v. Ins. Co 241 Root v. King 438 Roper v. Sagamon Lodge 422 Roscorla v. Thomas 103 Rosenkraus v. Barker 269 Rosenthal v. Dessau 387 Rosevelt v. Brown 140 Rosher, In re ; 337 Rosa v. Duncan "..... 462 v. Howell 268 v. Innis 170 v. Jones 45, 53 v. Philbrick 447, 449 Ros?er, In re 32, 38 Rothschild v. Frank 424 v. Grix 45 Rourke v. Colliery Co 10 Rouse, Hazard & Co., In re 34 Rousillon v. Rousillon 120 Rowe v. Hawkins 433 v. Sharp 381 Ruffin, Ex parte 253 Ruggles v. Lawson 315 Rumsey v. Phoenix Ins. Co 239 Run? Furn. Co., Matter of 28 Rushforth v. Hadfield 69 Russell v. Men of Devon . . . 148 Page. Russell v. Nicoll 382 v. People's Savings Bank. 199 v. Phillips 44 Russell & Birkett, In re 31 Rutland, etc., Co. v. Proctor 135 Ryan v. R. R. Co 72 Ryder v. Hathaway 295 Ryder v. Wombell 205 S. Sackrider v. McDonald 449 Sadler v. Lee 270 Safford v. Grout 454 Salinger v. Lusk 482 Salisbury v. Howe 453 v. Renick 102 Salmon, etc., Co. v. Goddard 395 Salomon v. Hathaway 377 Salt, etc., Bank v. Burton 57 Salt Springs Nat. Bk, v. Sloan . . 404 Samuel v. Cheney : 67 Sanders v. Barlow 405 V. Wilson 384 Sandford v. Wiggins Ferry Co ... 367 Sanford v. Lockland. . . . : 339 Sanford v. Nickels 264 Sargent v. Southgate 51 Sasser v. State 175 Saunders v. Vautier 339 Saunder's Case 161 Savage v. Mason 314 Savile v. Roberts 18S Savings Bank v. Ward 436 Sawyer v. Chambers 413 v. Hoag 14'J v. Kendal 30(J Sayer v. Bennett 271 Sayston v. Hack 270 Sayward v. Stevens 69 Scarf v. Jardine 262 Schaefer, In re 29 Scheld, In re 32 Schermerhorn v. Negus 337 Schofield v. R. R. Co 70 v. Whitelegge 487 Scholey v. Halsey 359 School District v. Benson 305 Schoonmaker v. Spencer 501 Schubert v. Clark Co 430 Schultz v. Brers 31S Schumpert v. Dillard 251 Schwab v. Cleveland 467 Schweer v. Brown 38 Schwenk v. Nay lor 45^5 Scofield v. Whitelegge 487 Scollans v. Flynn 4 1 Scott v. Boga'rt 267 v. Bryan 40H v. Coal Co. . . 11T> xlvi TABLE OF CASES. Tage. Scott v. Eagle Fire Ins. Co . . 140 v. Kittanning Coal Co 382 v. Sampson 223 v. Timberlake ..-. . . . 412 Scottish, etc., Ins. Co. v. Clancy.. 240 Scovill v. Griffith 64 v. Seeley . . . 279 Scribner v. Collar 23 Scroggin v. Holland 413 Scruggs v. Burruss 265 Scudder v. Bradford 71 Scull, Appeal of 250 Sears v. Dillingham 323 Seaver v. R. II. Co 14 Seavey v. Preble 444 Seeley v. Welles 112 Seifert v. Brooklyn 150 Seipel v. Ins. Co Ill Seiple v. Irwin 39S Seller v. S. S. " Pacific " 65 Semmes v. Ins. Co 245 Sennett v. Shehan 354 Sessums v. Botts 450 Sewell Falls Bridge Co. v. Fisk . . 129 Seybel v. Bank 47, 48, 140 Seymour v. Brown 362 v. Xewton 385 Shackelton v. Shackelton 197 Shaniburg v. Ruggles 263 Shanks v. Klein 2G5 Shannon v. Kinny 30r Sharp v. Grey 7.5 Shaw v. Gilmore 361 v. R. R. Co 70 v. Republic L. Ins. Co 110 v. Smith' 41 v. Spencer 464 v. Stein 454 Shawn-nit, etc., Ins. Co. v. Stevens 241, 243 Sheahan v. Barry 117 Shealy v. Toole 93 Shearer v. Shearer 251, 252 Shedd v. Bank 268 Sheeren v. Moses 115 Sheffield v. Van Dusen 438 Sheik v. Hobson 181 Sheldon v. Carpenter 188 v. Tns. Co 244 Shepard v. Buffalo, etc., Co 17 v. De Bernales 69 v. "Rhodes 98 Shepaus: Votin? Trust 141 Shephard v. Shephard 199 Shepherd v. People 164 Sheppard v. Oxenford 271 Sheridan v. Jackson 487 Sherman v. Trans. Co 303 Sherraden v. Parker.. . 417 Tage. Sherry v. Gilmare 25 1 Sherwood v. Stone 403 Sherwood v. Sutton 470 Shiells v. Blackbume 21 Shippey v. Henderson 101. Shirras v. Caig '. 4(J5 Shober v. Jack 220 Shoemaker v. State 161 Shore v. Wilson 233 Short v. Stone 1 l.i v. Syir.ms 449 Shorter v. People 432, 433, 434 Shove v. Wiley 226, 227 Shriver v. R/R. Co 63, 68 Sliulleff v. Parker 439 Sidney, The 240 Siegef v. Gould 23 Sieveking v. Button 282 Sillitoe, Ex par[e 257 Cilsbury v. McCoon 295 Silverberg v. Ins. Co 242 ffimar v. Canady 454, 455 Simmons v. Cloonan 311 v. More 39t> Simonds v. Kurd 10 Simonton v. First Bank 458 Simpson v. Crispin 115 v. X. Y. Rubber Co 17 Singer v. Maryland 83 Singleton v. Gilbert 345 v. Ins. Co 241 Sinnett v. Herbert 344 Sioux City R. R. Co. v. Bank 3 Sisson v. R. R. Co 21(5 Six Carpenters' Case, The 295, 447 Skellinger v. Howell 236 ?killman v. R. R. Co . 75 Skillman Hardware Co. v. Davis.. 115 Skinner v. Dayton 271 v. Upshaw 296 Slannin$ v. Style 199 Slater, Ex par'ie 26f> Slater v. Rawson 315 Slatterie v. Pooley 230 Slaughter v. Greene 3G2 Slayir.aker v. Bank 29-J Sleeper v. Chapman 46 1 v. Laconia 309 Slocombe v. Lyall 283 Slocum v. Providence 125 Slomka, In re . 34 Small v. Currie 422 Smart v. Blanchard 429 v. Hyde 237 v. Sanders 21 v. White 352 Smith v. Allen 40 v. Arnold 502 v. Bromley 352 TABLE OF CASES. xlvii Page. Smith v. Bryan 392 v. Clark 362 v. Commonwealth 154 v. Faxon 445 v. Gates . . . . : 449 v. Harrington 339 v. Holcomb , 181 v. Howard 440 v. Hurcl 138 v. Ins. Co 242 v. Knight 24S v. Morrill 29-3 v. Nat. Ben. Ass'n 245 v. Nightingale 41 v. Orser 254, 502 v. Palmer 23.) v. Parsons 282 v. Poillon '.... 60 v. R. R. Co 180 v. Rathbun 486 v. Rumsey . 400 v. Sloan * 261 v. Smith 294 v: State 164, 430 v. Towers 340 v. Wheeler 308 v. Young 440 Smythe v. Sturges 113 Snell, In re .'.... 33 Snell v. Ins. Co 241 Snider Sons Co. v. Troy 126 Snyder, In re 172 Snyder v. May 260 Society Perun v. Cleveland. ...... 126 Sohier v. Loring 53 Sohram v. Werner t 411 Somerby v. Buntin . ,, 39 1 Somers v. Pumphrey 311 Sonoma Bank v. Gove' 50 Soper \\ Fry 268 Southcote v. Stanley 437 Southern Development Co. v. Silva 45;] Southern L. Ins. Co.- v. McCain.. 230 Southwick v. Southwick ........ t 235 Spain v. Hamilton 465 Spaits v. Poundstone , 438 Spalding v. Rosa Ill v. Ruding 388 Spaulding v. Andrews 43 v. Lowell 147 v. Oakes 429 Spence v. Ins. Co 295 Spencer v. Bemis 290 v. Fowles 21 v. Merchant 78 Spencer's Case 312, 313 Sperry v. Horr 41 Spiller v. Westlake. 108 Spofford v. Hanow. . .' 448 Page. Spooner v. Holmes 440 v. Manchester 44tJ Springer v. Cabell 258 v. Kleinsorge 396 Squires v. Seward 283 St. Barbe, Ex parte 257 St. John v. Ins. Co 240 St. Joze Indiano, The 366 St. Louis Co. v. Johnston 457 Staats v. Bristow 502 Stadtfield v. Huntsman 384 Stalker v. McDonald 48 Stanley v. State ..... T 15G Staple v. Haydon 292 Staples v. Sprague 268 Star of Hope 71 Stark v. Parker 353 Starr v. Haskins 46 1 State v. Anderson 175 v. Asher 172 v. Balch 440 v. Brown 177 v. Bryson 432 v. Burnharn 433 v. Campbell 75 v. Caverly 176 v. Chandler 157 v. Coombs 169 v. Cooper 165 v. Craig . . 166 v. Davis 169, 1D.J v. Dawson 125 v. Donnelly 434 v. Downer -. . . . 450 v; Estes 172 v. Foster . . 178 v. Gazell 16i5 v. Girkin 160 v. Greesdale 20, 468 v. Hall 10-$ v. Heineman 83 v..Hoit 102 v. Hughes 36*? v. Hurd 164 v. Innes 177 v. Jones 166 v. Lyon 164 v. Mayberrv 160 v. Mills 172, 173 v. Mo. Pac. R. R. Co 74 v. Moore 168, 447 v. Morris, etc., R. R. Co... . 130 v. Murray 160 v. Norris 157 v. Noves 160 v. O'Brien 162, 105 v. O'Neil SOS v. Oawkee 86 v. Patterson 434 xlviii TABLE or CASES. Page. State v. Phelps ................ 220 v. Plym ................ 219 v. Randolph ............ 23ii v. Rawls ..... ........... 23'i v. Renton ............... 158 v. Richardson ........... 450 v. Robinson ............. 175 v. Rowe ................ 105 v. Rowley ............... 160 v. Ryan ................ 169 v. Scott ................ 155 v. Scripture ............. 164 v. Shephe'rd . ............ 162 v. Sherman ............. 433 v. Shermer . , ............ 169 v. Smith ............ 175, 218 v. St. Clair .............. 174 v. Standard Oil Co ........ 141 v. Stratton .............. 175 v. Taylor ................ 159 v. Toole ................ 164 v. Turnpike ............. 129 v. Underwood ....... .... 156 v. Walker .............. 190 v. Warren .............. 164 v. Weed ................ 449 v. Wilson ............... 164 v. W T yatt ............... 157 v. Zellers ............... 434 State Bank v. Knoop ............ 89 State Board, etc. v. R. R. Co ..... 135 Steacy v. R. R. Co .............. 144 Stead v. Thornton .............. 1 Steamboat Lynx v. King ........ 63 Stearns v. Haughton .......... 264 v. Marsh ............. 297 Stebbins v. Crawford .......... 102 v. Duncan ........... 230 Steel v. Dixon ................. 411 Steele y. Bank ................. 268 Steiger v. Erie R, R. Co ....... . . 64 Stein, In re .................... 34 Stein v. La Dow .......... .- ..... 26-5 Steinmetz v. Kelly .............. 453 Stensiraard v. Sniith ............ 18 Stephens v. Elwall ........... 446 v. Stephens .......... 341 Stephenson v. Ins. Co ........... 246 v. Little ........... 434 Sterling v. Xarden .............. 434 Stetson v. Patten ............... 7 Steuben Co. Bank v. Alberger.430, 502 Stevens v. Bank .............. 268 v. Middleton .......... 429 Stevenson v. McLean .......... 93 v. Smith ............ 188 Stewart v. Eden .............. 57 v. Emerson ........... 454 181 v. v. Woodward Page. Stickler's Appeal 250- Stiles v. Davis 6 Still v. Focke 250 Stillman v. Dresser 401 v. Harvey 259, 2til Stillson v. Gibbs 181 Stinson v. Gardner 279 Stockclale v. Keyes 26(> Stoddard v. Ham 95, 373 Stoffer v. State 434 Stolz v. Doering 191 Stone v. Browning 393^ v. Compton 423- v. Mississippi 89 1 v. Varney 22* v. Waitt 67 Storber v. Thudium 500 Storrs v. Benbow 34 "> v. Utica 12 Storrs Agric. School v. Whitney. 34-i- Story v. Ashton 11 Stout v. Zulick 12(> Stover v. Bluehill 187 Strange v. Fooks 418 Streeper v. Williams 182 Street v. Blay 374 Streit v. Sanborn 47 Strickle^ v. Conn 262 Strong v! Foote 20.> v. Ins. Co 243, 241 v. Sproul 485- Stuckey v. Savings Bank 33 Stucky v. Clyburn 376 Studcfs v. Watson ' 39-> Stull v. Harris 91 Sturges v. Crowninshield 26- Sturgis v. Theological, etc., Soc 12 Sugden v. Lord St. Leonards 230 Sullivan v. Sullivan '..'... 323 v. Waters 437 Sumner v. Woods 381 Sunderland, Goods of 323 Surocco v. Geary 444 Susong v. Valden 427 Sussdorf v. Schmidt 487 Sussex Bank v. Baldwin 57 Sutton v. Beck with 108 Sutherland v. Bradner 502 Suydam v. Ins. Co 244 v. Westfall 53 Swainson v. Ry. Co 13 Swan v. Xpsrn'ith 403 v. R. R. Co 75 i Swarts v. Siesrel 408 ; Fwartwout v. R. R. Co 126 i Sweeney v. Ins. Co 239 Sweet v. Barney 67 v. Morrison 108 v. Parker . .331 TABLE OF CASES. xlix Page. Sweetser v. Frentfh 261 Swift v. Luce 200 v. Tyson 48 Swigont v. A.spden 262 Synge v. Synge 338 T. Taft v. Brewster 9 v. Stevens 332 Tallmadge v. Bank 311 Talmadge v. Oliver 383 Taney v. Kemp 235 Tarbel v. Bradley 251, 252 Tarrabochia v. Hickie 114 Tarrant v. Webb . 15 Tate v. Clements 26G Tatem v. Chaplin 313 Tatton v. Wade 454 Tayler v. Jeter 417 Taylor, Ex parte 25G Taylor v. Hare 348 v. Meads 199 v. Smith 290 v. Wilson 250 v. Wrenn 112 Tegler v. Shipman 368 Templeton v. Shakley 417 Temperance, etc. v. Giles 222 Terhune v. Dever 453 Terry v. Munger 359 Terwilliger v. Wands 438 Texas, etc. R. R. v. Rust 182 v. So. Pacific Ry. Co. ... 120 Thayer v. Buffum 249 v. Daniels 409, 465 v. Wellington 328 Thellusson v. Woodford 342 Third Bank v. Lange : 464 Third Xat. Bk. v. Owen 422 Thomas v. Brown 354 v. Port Hudson 151 v. State 163 v. Wason 417 v. Winchester 435 Thomassen v. Van Wyngaarden. . 459 Thompson v. Davenport 17 v. Erie Ry. Co 485 v. Howard 359 v. Phoenix Ins. Co. . . . 245 v. Sloan 40 v. Williams 352 Thorn v. Shering ?S3 Thome v. Deas 20 Thorp v. Thorp 106 Thorpe v. Coal Co 314 v. Rutland, etc., R. R. Co 82, 132 Threfall v. Berwick.. . 296 Tage. Thursby v. Lidgerwood 264 Thurston v. R. R. Co 72 v. Whitney 234 Thwing v. Hall 213 Tidd v. Rines 251 Tier v. Lampson 18 Tiffany v. Bowerman 487 Tilden v. Johnson 185 Tillett v. Ward 443 Tilley v. N. Y., etc.., R. R. Co.. . . 187 Tillinghast v. Bradford . . ..340, 407 v. Coggeshall 466 Ti4ton v. Beecher 490 Tippet v. May 281 Titus v. Titus 328 Tisdale v. Harris , 391 Tobey v. Moore 342 Todd v. Todd 193 Tolen v. Tolen . . . .' 194 Tolles-v. Wood 467 Tome v. Dubois 363 Tomlinson Co. v. Kinsella 51 Tompkins v. Powell 463 Tompson v. Dashwood 440 Topham v. Morecraft 468 Topping, Ex parte 258, 259 Torrey v. Burnett 330 Towle v. Dresser 2 Towne v. Wiley , 205 Townsend v. Whitney 409 Townsley v. Chapin 198 v. Rumrall 59 Tracy v. Atherton 218, 304 v. Gunn 183 v. Talmadge 352 Trafford v. Hall 50 Trainer v. Trumbull 91 Trans. Co. v. Chicago 86 v. Downer 68 Transportation Line v. Hope 61 Trapp v. Wallace 24 Travelers' Ins. Co. v. Edwards... 241 Treadwell v. Reynolds 371 Tresham v. Ford 279 Trimble v. Foster 188 Trist v. Child... 156 Trott v. Colwell 198 Troup v. Smith 470 Troy Bank v. Wilcox 464 True v. Ranney 192 Truesdell v. Thompson 40 Tucker Mfg. Co. v. Fairbanks 9 Tuckerman v. Hartwell 44 Tulk v. Moxhay 314 Tully \. Howling 113 Tunnel v. Pettijohn 61 Tupper v. Cadwell 205 Turnbull v. Maddox 102 Turner v. Crichton . . 505 TABLE or CASES. Page. Turner v. Cruzen 151 v. Meyers 192 v. Ross 266 v. Webster 357 Tuscaloosa v. Cox 138 Tweddle v. Atkinson 104 Twenty-third St. Baptist Church v. Cornell 99 Twynam v. Pickard 313 U. U. S. v. Am. Bonding Co 415 v. Amy U7 v. Cole 160 v. Crosby ' 320 v. Davis 168 v. Freel 421 v. Gooding 219 v. Greenhut '120 v. Guiteau 155 v. Holmes 154 v. Jones 155 v. Kirkpatrick 422 v. Macomb 224 v. Xelson 120 v. Price , 427 v. Shellmire 157 v. Spalding 420 v. Wiltberger 161 Udell v. Athe'rton 12 Uline v. N. Y. C. & H. R. R. R. Co 180 Union Bank v. Geary 100 v. Jacobs 127 v. Knapp 224 Union, etc., Ins. Co. v. Pottker. . 239 v. Wilkin- son ... 242 Union Express Co. v. Craham. ... 63 Union Hall Ass'n v. .Morrison. . . . 35G L nion Locks v. Towne 1ST Union Trust Co., In re 34 Universal L. Ins. Co. v. White- head 238 Upton v. Stunbridge Mills Co .... 8 V. Vail v. Durant 290 v. West Va. Co 207 Valpy v. Sanders 359 Van Brunt v. Applegate 251 Van Cortlandt v. Kip 328 Van Cott v. Van 'Brunt 144 Van Deusen v. Blum 348 Van Horn v. Campbell 337 Van Loori v. Lyons * . 501 Van Xess v. Pacard 330 Van Wart v. Woolley 458 Van Wyke v. Brasher 91 Page, Vanderbeck v. Hendfy 437 v. Vanderbeck ..... 52. Vassar v. Camp 9& Vaughen v. Haldeman 330 Vaughn v. Hopson 364 Veazie v. McGugin 462. Velona, The 71 Vermilye & Co. v. Adams Ex. Co. 51 Vernon v. Manhattan Co 262 Vick v. R. R. Co 14 Village of Chester v. Leonard... 417 Vincent v. Mutual, etc., Co 218- v. Nantucket 151 Vinton v. Peck 229 v. R. R. Co 72. Voorhis v. Baxter 25& Vosburgh v. Thayer 226 Vose v. Dolan 2 Vrecland v. Schoonmaker 467 Vyse v. Wakefield US W. Wabash R. R. Co. v. McDaniels. . 15 Wade v. Simeon 9ft Wadley v. Buckingham 383 Wagar v. Detroit, etc., R. R. Co.. 365 Wagner v. Freschl 261 Wagoner v. State 204 Wain v. Warlters '. 394 Waite v. Foster 264 Wakeman v. Gowdy 418 Walcott v. Van Santvoord 56 Waldele v. R. R. Co 228 Walden v. Holman 278 v. Murdock 371 Waldo v. Cummings 336 Walker v. Brooks 458 v. Conant 348 v. Goldsmith 4 IS v. Jones 282 v. Osgood 23 v. Supples 391 v. Walker 8- Wall v. Lee 433 v. Schneider 121 Wallace v. Fletcher 304 Waller v. Davis : 271 . Walsh v. Lennon 260 v. People 155, 156 Walter v. James 7 Walts v. Nichols 502" Ward v. Hackett 424 v. People 155 v. State 168 v. Turner 294 v, Williams 8 Ware v. Cann 337 Warner v. Bates 460 v. Beers 123- TABLE OF CASES. li Page. Warner v. Warner 325 Warren v. Ball 263 v. Blake 312 v. Hooge 97 v. Paul 87 v. Southworth 310 v. State 430 Wartman v. Breed 371 Warwick v. Hutchinson 179 Washburn v. Oilman 319 v. Van Steenwyk . .209, 320 Washington, etc., Co. v. Am. Ins. Co , 238 Washington Ice Co. v. Webster. . . 183 Washington Univ. v. Rouse 88 Wasson v. Hodshire 418 Watcrbury v. Waterbury 501 Waterman v. Whitney 228 Watertown, etc., Co. v. Davis .... 382 Watervliet v. AVhite '. 46 Watson v. Perrigo 401 Watkins v. Maule 46 Watriss v. Bank 330 Watts v. Hendry 365 Waugh v. Carver 247, 248 Way v. R. R. Co 72 v. Sperry 101 Wayland v: Tysen 485 Wead v. Larkin. . 315 Weave v. Sawyer 413 Webber v. Davis 363 Weber v. Bridgman 19 v. Diebold, etc., Co 384 Weed v. Adams 21 v. Boutelle 465 Weeks v. Sjmrke 226 Weet v. Brockport 149 Weil, hi re 31 Weir Plow Co. v. Walmsley 420 Welch v. Sackett 315 v. Wesson 448 Welles v. March 265 Wellington v. Janvrin 339 Wells v. Head '. 445 v. Morrow 463 v. Navigation Co 61 v. Seiss 261 v. Thomas 69 Welsh v. Barrett 227 v. Welsh 356 Wernwag v. R. R. Co 67 West, etc.. Bank v. Thompson.... 53 Westcott, Ex parte 257, 250 Western, etc. v. Philadelphia 147 Western X. Y. Life Ins. Co. v. Clinton 424 Westlake v. St. Louis 359 West River Bridse Co. v. Dix 85 Weston v. Charleston 87 Page. Westover v! ^Etna, etc., Co 235 Westzinthus, In re 388 Wetherbee v. Baker 144 v. Green . . - 295 Wetherell v. Everets 287 Whale v. Booth 327 Wharton & Co. v. Winch 117 Wheeler v. Sage 211, 272 v. Van Wart 270 Wheelhouse v. Parr 369 Wheelock v. Moulton 124 Whipp v. State 202 Whipple v. Thayer 370 Whitcomb v. Converse 271 White v. Bank 135 v. Carroll 440 v. Corliss 93 v. Drew 466 ' v. France 437 v. Lang 448 v. Miller 18 1 v. R. R. Co 140 v. Sawyer 12, 269 v. Schloerb 38 y. State 157 v. Stoddard 58 v. Whitney 333 Whitchead v. Bennett 330 v. Walker 44 Whitford v. R. R. Co. 326 Whiting v. Ins. Co 6 Whiton v. Spring 398 Whitney v. Dutch 2, 200 v. Ladd 296 v. Stearns 462 Whitney Arms Co. v. Barlow.... 135 Whittemore v. Elliott 254 Wilcox, In re 27 Wilcox Co. v. Green 392 Wild v. Davenport 272 Wildes v. Savage 404 Wildman v. R. R. Co 100 Wiles v. Suydam 145 Wiles, etc., Co. v. Hahlo 29t> Williams v. Jones. . .' 337 v. Leper 407 v. Lyman 4^2 v. State 204 v. Williams 204 Wilfred v. Myers 110 Wilkins v. Davis 257 v. Pearce 268 Wilkinson v. Heavenrich ....... 395 v. Henderson ........ 256 Willett v. Blanford 272 Williams, Ex parte 253 Williams v. Bemis 351 v. Boice 142, 144 v. Evans . . 393 lii TABLE OF CASES. Page. Williams v. Germaine. . . . : 44 v. Higgins 21 v. Ingersoll 465 v. Ins. Co 6, 240 v. McKav 4V u v. Sautter 248 v. Vreeland 401 Williamsport v. Commonwealth.. 151 Willis v. State 204 v. Willis : 423 Willison v. Watkins , 305 Wilson v. Brett 21 v. Crawford 409 v. City Bank 28 v. Foot .- 416 v. Foree 358 v. Kimball 409 v. People 169 v. R. R. Co 74 v. Spencer 183 v. Tumman 5 v. Wilson 196 Wilson Bros. v. Nelson 28 Wilton v. Eaton 93 v. Middlesex R. R 203 Wimbledon, etc. v. Dixon 317 Winchelsea v. Higden 289, 290 Winchester v. Craig 185, 18G v. Nutter 121 W 7 indham Bank v. Norton 58 Winn v. Dillon 23 v. Sanford 413 Winslow v. Kimball 323 Win^or v. Mills 338 Winter v. Rockwell 317 v. Stock 251 Winthrop v. Fairbanks 311 Wisconsin Cent. R. R. Co. v. Price Co 86 Wise v. Charlton 4^ v. Hodsall 286, 283 Withers v. Greene 375 Withy v. Mumford 312 Wittenbrock v. Bellmer 9 Wolcott v. Van Santvoord 56 Wolf v. Des Moines, etc., R. R. Co 182 v. Wall 326 Wolfe v. Hawes 354 Wolff v. Koppel 22 v. Wolff 310 Wolmershausen v. Gullick 412 Wonson v. Say ward 168 Wood v. Dudley 297 v. Drummer 142 v. Hammond . . . 13o v. Leadbitter 319 v. Scolos . .271 Page. Wood v. Steele 420, 425 Wood, etc., Co. v. Smith 112 Woodbridge v. Swann 264 Woodenware Co. v. U. S 186, 295 Woodin v. Durfee 425 Woodman v. Boothby 257 Woodruff Co. v. Diehl 62 Woocltliorpe v. Lawes 59 Woodward v. Semans 362 Woolensack v. Briggs 367 Wooster v. Tarr 69 Worcester County, In re 39 Word v. Morgan 418 Workman v. 'Wright 5 Worsley v. Wood 110 Worthington v. Cowles 10 Wright v. Burroughs 200 v. Herrick 267 v. Jones 39d v. Tatham 223 v. Tetlow 367 Wulff v. Jay 418 Wurts v. Hoagland 82 Wyck v. East India Co 467 Wyley v. Bull 357 X. Xenos v. Wickham 314 Y. Yale v. Dederer 199 Yale v. Eames 264 Yeap Cheak Neo v. Ong Cheng Neo 344 Yetzger v. Thomas 305 Yick Wo v. Hopkins 79, 83 Yocum v. Smith 48 Yonkers, etc., Ins. Co. v. Hoffman Ins. Co 243 York v. Greenough 69 York Mfg. Co. v. Cassel 30 Yorkshire Ry. Wagon Co. v. Ma- cluro 413 Younj? v. Cooper 284, 28S v. Grote 48 v. Hichens 294 Youngs v. Lee 59 Yukon Woolen Co., In re 30 Z. Zabriskie v. R. R. Co 133 Zaleski v. Clark 112 Zimpleman v. Keatjng 7 Zinn v. Steamboat Co 67 Zoebisch v. Van Minden 100 Zouch v. Parsons 206 Zuck v. McClure 117 Zwisler v. Storts.. . 364 QUESTIONS AND ANSWERS FOK BAR EXAMINATION REVIEW. I. WHAT ACTS CANNOT BE DONE BY AN AGENT. 1. A. is made a trustee for the management of certain prop- erty. Can he delegate the performance of any of his trust duties to an agent? The rule is absolute that a trustee has no power of delegation, i. e., he cannot delegate the performance of any act which requires his personal discretion. It is his personal qualification that has caused his selection as trustee. Merrill v. Trust Co., 24 Hun (N. Y.), 297, 299. Where the acts are merely clerical, however, and require no dis- cretion, delegation by a trustee is possible. 2. A. is required in an action to make a certain affidavit. Can it be sworn to by B., A.'s agent? If A. is a corporation the affidavit must, of necessity, be made by an agent, but if A. is an individual, the text-books usually state that he must swear to the affidavit personally. The authorities quoted are not numerous, however. Pool v. Webster, 3 Met. (Ky.) 278, sustains this view, and Flake v. Day, 22 Ala. 132, is contra. The question should be one of substance. If personal credit is required, then it is cer- tainly correct to hold that an agent cannot act. If, however, the affidavit is one of mere form, then the agent should be competent. In almost every State there is a statute allowing an agent to take an oath for his principal. II. WHO MAY BE A PRINCIPAL. 3. Can an insane person, a minor or a married woman be a principal? An insane person cannot, as he is unable to act for himself, and so cannot appoint an agent. Stead v. Thornton, 3 B. & Adol. 357, notett -, 2 QUESTIONS AND ANSWERS. As to an infant, the law is settled by the weight of authority that he cannot be a principal, and that the appointment of an agent by him is void. Mechem on Agency, 51-55. The sound- ness of this view, however, is well questioned by the same author. Id., 55. Certainly, the infant would be amply protected if the appointment were simply voidable, as in the case of contracts. Towle v. Dresser, 73 Me. 252, 256, and Whitney v. Dutch, 14 Mass. 457, support this -view and seem sound. In so far as a married woman has statutory capacity to act, sh can act through an agent, even if the latter be her husband. Bo- dine v. Killeen, 53 N. Y. 93. III. WHO MAY BE AN AGENT. 4. A. authorized B., his slave, to act for him. Is A. bound by such action? Suppose B. is an infant? a married woman? A slave may be an agent. Cjiastain v. Bowman, 1 Hill (S. C.), 175. Both an infant and a married woman may also be agents. Mechem on Agency, 59-61. These illustrations show that the ability to contract in one's own right is not necessary for a capacity to act as an agent. IV. CONFERRING AUTHORITY TO EXECUTE INSTRUMENTS UNDER SEAL. . 5. A. draws a deed and gives his agent parol authority to fill up certain blanks. Would the deed be valid? If the blanks were not material, the parol authority would be sufficient. Vose v. Dolan, 108 Mass. 155. But if the blanks were material, parol authority to fill them up would not be sufficient in jurisdictions where the seal has not been abolished by statute. Where such statutes have not been passed, the old rule still obtains that an authority to execute an instrument under seal must also be under seal. Mechem on Agency, 93. Many of the western States, however, have abolished seals, and in such jurisdictions the seal will be disregarded and the instrument treated as a simple contract for which parol authority is sufficient. Id., 95. V. CONFERRING AUTHORITY GENERALLY. ACTUAL AND INCI- DENTAL AUTHORITY. 6. A., a tailor, hired B. to carry on a branch store. B., with- out authority, paid his doctor's bill in clothes. Could 4- re " cover from the doctor? Yes. B. had authority to do anything which would be usual in the conduct of the business, but he had no authority to bind A.. when using A.'s goods for private purposes. Such an authority could in no way be implied from that actually given. Stewart v. Woodward, 50 Vt. 78. AGENCY. 3 7. A. appoints B. his general agent to sell his horses, telling him specially not to warrant the soundness of one particular _ horse. B. does warrant that horse. Could A. be held for breach of warranty? Yes. B. had the incidental authority to warrant the horse, i.-e., such authority was reasonably to be implied from his general authority to sell, and the purchaser could rely upon B.'s apparent authority unless the limitation was actually known. A principal cannot free himself from liability by secret instructions to his agent. Howard v. Sheward, L. R. 2 C. P. 148, 151. 8. A-'s agent, a ship captain, signed a bill of lading when, in reality, the goods had never been received. Would A. be bound by h is agent's acts, if sued by an innocent third party ? In the United States, by the best authority, he would be. "\Yhere a principal gives his agent aiithority to do an act upon the existence of some extrinsic fact, peculiarly within the knowledge of the agent and of the existence of which the act of execution is itself a representation, the principal is then estopped to deny the truth of his agent's representation to one who has dealt with the agent, in good faith, in reliance upon the representations. Bank of Batavia v. R. R. Co., -106 N. Y. 195; New York, etc., R. R. Co. v. Schuyler, 34 id. 30, 53; Sioux City, etc., R. R. Co. v. P.ank, 10 Neb. 556. In England, however, the law is settled contra, and A. would not be bound. Grant v. Norway, 10 Com. Bench, 665; Coventry v. Railroad Co., 11 Q. B. Div. 776. The powers of an agent in general may be shown by the following diagram: fl. SPECIFIED. [Conferred explicitly.] POWERS OF fNOT FORBIDDEN. AGENT ARE -j 2. INCIDENTAL [Customary or reasonably necessary.] 4 FORBIDDEN. a. . Limitation known. I b. Limitation unknown . [3. FOUNDED IN ESTOPPEL. .[As to third persons.] As has been shown by the previous answers, incidental authority is that which a man would reasonably infer to be implied by the giving of the powers which are conferred explicitly. Whether incidental au- thority exists in a certain case is, therefore, a question of fact for the jury. Brady v. Todd, 9 C. B. (N. S.) 592. Incidental authority is as actual as any other, and as has also been shown, any limitation of it must be known to the third party in order to affect his rights. VI. SUBSTANTIAL PERFORMANCE OF AUTHORITY. 9. A. gave B., his agent, authority 'to sign a note for him, payable in six months. B. signed a note payable in sixty days. Is A. liable? 4 QUESTIONS AND ANSWERS. No. The agent had no authority of any kind to sign a note for sixty days. Batty v. Carswell, 2 Johns. (N. Y.) 48. A special power must be followed strictly. 10. A. ordered fifty cases of goods through B., his agent. B. shipped forty-nine, being all that he could get. Can A. refuse the goods? Suppose B. had shipped one hundred cases? A. could not refuse the forty-nine cases. Such a shipment was a substantial performance of B.'s authority. He would have an in- cidental authority to deviate from the exact orders to a reasonable extent. Lathrop v. Harlow, 23 Mo. 209. When an agent exceeds his directions two questions arise: (1) had he, by incidental authority, power to do the whole, and (2) is the contract severable. If the agent had no power to do the whole, as he would not have to buy one hundred cases, A. could not be held at all, unless the purchase of one hundred cases could be severed into two or more contracts, one of which substantially complied with the order for fifty cases as given. If that could be done, A. would be bound as to that part. VII. SUBSTITUTION. DELEGATING AUTHORITY. 11. A., an executor, employs B. to act in his place. What, if any, would be A/s liability for B/s negligence or misconduct? A. would be absolutely liable. Where personal trust is placed in an agent, such as an executor, he has no right to delegate his power, nor to substitute another in his stead. Mechem on Agency, 189. 12. Under what circumstances may an agent delegate his authority, and what are his liabilities after such delegation? An agent may delegate his authority (1) when the acts to be performed are mechanical or ministerial only; (2) where necessity requires it, as the employment of an attorney, if an agent is directed to bring, suit; (3) where such delegation is customary; (4) where it was originally contemplated. Mechem on Agency, 192-196. After delegating his authority, the agent is in no way liable for the misdeeds of the sub-agent, providing he has used due care in his selec- tion. In that case the sub-agent is directly responsible to the principal. If due care has not been used, however, the agent will be liable for tne injury arising from the negligent delegation. Mechem on Agency, I 197. 13. The A. bank is given a note payable in a distant city, and sends it to the B. bank for collection. The B. bank negligently fails to colled. Is the A. bank liable? In most jurisdictions, it is held that this is a case where delega- tiou is necessary, and, therefore, that the A. bank would not be AGENCY. 5 liable, if it had exercised due care in selecting the B. bank. The courts are not unanimous, however, and it is held in New York, Michigan, Ohio, New Jersey, Montana, Indiana, the United States Supreme Court and in England that the A. bank would be liable. In these jurisdictions the A. bank is considered as an independent contractor, which selects its own agents and is liable for their default. Mechem on Agency, 514. See Trusts, Ques. 6. VIII. EATEFICATION. a. Generally. 14. An agent with authority to draw checks, drew one for an unauthorized purpose. The principal ratified the agent's act, and then stopped payment of the check on the ground that there was no consideration for his ratification. Would he be liable? Yes. Eatification needs no consideration. It is not a contract, but an adoption of an act which would have been good if there had been authority. Commercial Bank v. Warren, 15 N. Y. 577. 15. The Statute of Frauds requires that a contract for the sale of goods shall be signed by a duly authorized agent of the party to be charged. If an agent makes and signs an unau- thorized contract and his principal then ratifies, has the statute been satisfied? Yes. For the purposes of the statute the ratification of the principal relates back to the time of the contract, and the memo- randum is good ab initio. Maclean v. Dunn, 4 Bing. 722. 16. B.'s agent X., acted without authority, and C., wishing to profit by the contract made by X., ratified it. Who would be liable on the contract, B. or C.? Neither would be liable; B. because he never ratified, and C. because he could not ratify. Eatification is only possible by the person from whom the agent expected to get his autlwrity. "Wil- son v. Tumman, 6 Man. & G. 236. 17. A. forges B.'s name. Can B. ratify the forgery?- The authorities are divided. Maine, Massachusetts, Connecti- cut, Illinois, Missouri and New York hold that a forgery can be ratified. See Greenfield Bank v. Crafts, 86 Mass. 447. England, Pennsylvania, Ohio, New Hampshire, Maryland and Indiana say that a forgery cannot be ratified. See Brook v. Hook, L. E. 6 Exch. 89; Workman v. Wright, 33 Ohio St. 405. As a strict ques- tion of principle, the latter view seems better. As said in Brook v. Hook (supra), ratification applies only when the party pretends to act under authority, and a forger never represents himself as an 6 QUESTIONS AND -ANSWERS. agent, nor intends to act as one. The whole basis of ratification is the idea that there is a principal who can ratify. 18. B. acts for a corporation about to be formed, and after the incorporation the company ratifies B.'s act. Is the ratifica- tion good? No. Eatification relates back to the time of the original act, and there must be a principal who could act at that time. The existence of the principal at the time of the ratification merely is not enough. Kelner v. Baxter, L. E. 2 C. P. 174. 19. A. makes an unauthorized contract in the name of his principal, who dies before ratifying. Can the administrator ratify ? No. There can be no ratification after the death of the party for whom the act was done. Whiting v. Ins. Co., 129 Mass. 240. 20. A., an agent, made an unauthorized purchase of goods from B. C. attached these goods as the property of B., and then A/s principal ratified his purchase? Who has a right to the goods ? They belong to C. Eatification does not relate back so as to defeat the rights of intervening parties. Pollock v. Cohen, 32 Ohio St. 514. 21. Can a principal revoke a ratification? No. "When a principal once makes an election, that is final. Beall v. January, 62 Mo. 435, 439; Jones v. Atkinson, 68 Ala. 167. b. Time of Ratification. 22. A. insures B.'s ship without authority. B. ratifies after he learns of the loss of the ship. Can he hold fhe insurance company ? Yes. Ordinarily, a principal must have the power to make the contract himself at the time of ratification, but in cases of marine insurance, the exception is established that ratification after loss is good. Finney v. Ins. Co., 46 Mass. 192. See also Williams v. In?. Co.. L. E. 1 C. P. I)iv. 757, 764. In Canada this exception is carried into cases of fire insurance. Ogden v. Ins. Co., 3 U. C. C. P. 497, 511. 23. An agent made an unauthorized contract with a third party, who then rescinded before the principal had had an op- portunity to ratify. The principal did ratify as soon as he learned of the contract. Could he hold the third party? AGENCY. 7 Xo. Before ratification the third party has a perfect right to rescind, and after rescission there is nothing left for the principal to ratify. Walter v. James, L. K. 6 Ex. 124. 24. A., an agent, makes an unauthorized contract, with B. The principal ratifies A.'s act, but B. then refuses to abide by the contract. Is he bound? By the authorities, such a contract is held not to be binding. Dodge v. Hopkins, 14 Wis. 630, 636; Mechem on Agency, 179. The argument is that, as the principal is not bound until ratifica- tion; the third party cannot be bound until he assents to the ratification. This reasoning, however, overlooks the fact that the third party did assent to the contract originally, and, on principle, his assent should continue, as it would in the case of an offer, until it is rescinded. According to the authorities in the above situation, ratification is an impossibility. There must be an entirely new contract. c. Attempt to Ratify in Part. 25. A.'s agent contracted to sell B. negotiable paper falsely representing that it was good. A^bues B. for the contract price and argues that his agent's fraud is no defense, as it was not authorized? Is the argument good? Xo. An agent's acts cannot be ratified in part and repudiated in part. ' By suing. A. ratified all his agent's acts, including the fraud, whether authorized or not. Elwell v. Chamberlin, 31 N. Y. 611, 619. d. Oral Ratification of Instrument under Seal. 26. An agent, without authority, conveyed his principal's land by deed. The principal ratified the agent's sale by parol, and now seeks to rescind? Can he do so? Yes. When an instrument under seal is executed by an agent, his authority must be given by an instrument also under seal, and parol ratification is no better than parol authority. Stetson v. Patten 2 Me. 358; Zimpelman v. Keating, 72 Tex. 318. This rule has been generally relaxed, however, in partnership cases, allowing parol ratification by one partner of an instrument sealed by a copartner. Peirce v. Weber, 47 111. 41, 45. And in Massa- chusetts it is held that the sealing of any instrument may be ratified by parol. Mclntyre v. Park, 77 Mass. 102, 106. This is very ex- treme, however, and is nowhere followed. 8 QUESTIONS AND ANSWEES. e. Batification without Full Knowledge. 27. A.'s agent makes a contract which A. ratifies before he knows all of the facts of the case. On learning them, he re- pudiates. Would his previous ratification bind him? No. Ratification, to be binding, must be with full knowledge of all the material facts. Coombs v. Scott, 94 Mass. 493, 497; Walker v. Walker, 5 Heisk. (Penn.) 425, 429. f . As to What Constitutes Ratification. 28. A. ordered his agent to buy goods in Boston. The agent bought in New York and notified A.., who said nothing for sev- eral days, until he was informed that the goods had been lost. He then repudiated the agent's purchase. Could he do so? No. Silence, though not ratification, may be such strong evi- dence of it that the inference is necessary, as it is in this case. A principal cannot hold his peace to bide the event. Ratification is a question of fact, and a man who will not speak must let a jury construe his silence. Foster v. Rockwell, 104 Mass. 167, 172. He cannot lie by and seize the benefit of a contract if profitable, or renounce it if otherwise, at his election. Phila., etc., R. R. Co. v. Cowell, 28 Penn. St. jg9. Even when the quasi age^p is a mere meddler, the silence of the principal is admissible evidence of ratification, though not very weighty. Heyn v. O'Hagen, 60 Mich. 150, 157. Contrary to this, however, is Ward v. Williams, 26 111. 447. 29. An agent made an unauthorized contract. The prin- cipal told a party not interested in the contract that he had ratified it. Would that alone be a good ratification? Yes. Ratification is simply a case of election, and all that you need to prove is that the election was made, as shown by some act to anyone. Upton v. Stunbridge Mills Co., Ill Mass. 446; Bishop on Contracts, 777-783, 803, 808, 844. 30. A.'s friend (not an agent) sells and delivers A.'s goods to B. without authority, and while doing so, breaks B.'s window. A. knowing this, sues for the value of the goods. Has he ratified the tort as well as the contract? Yes. A. has ratified the relation of principal and agent and the liability for the tort is incidental to the relation. Dempsey v. Chambers, 154 Mass. 330. 31. An agent, ivithout authority, brings suit in his princi- pal's name. The principal ratifies after service of the pleadings. Is the suit well begun? AGENCY. 9 Yes. "it is held that the ratification relates back and that the suit is good ab initio. Ancona v. Marks, 7 Hurl. & N. 686. This view is generally followed in the United States. But see Wittenbrock v. Bellmer, 57 Cal. 12. In that case the plaintiff sued upon a note which was assigned to him by an agent without authority, and it was held that a ratification after the suit was begun was unavailing. IX. MODE OF EXECUTING AUTHORITY. FORM OF SIGNATURE. a. Contracts under Seal. 32. Action against E., C. and D. on bond signed "B., C. and D. r trustees of X. society" and sealed by them respectively. Are B. f C. and D. liable personally? Yes. In spite of the evident intention of the parties, the seals are not those of the society, and the addition of the words " trus- tees/' etc., will not free the parties from personal liability. The words are treated by the court as merely descriptive. Taft v. Brewster, 9 Johns. (N. Y.) 334. To bind the principal the sealed instrument must purport to be signed and sealed by the principal. The proper wav to have signed the above bond would have been, "The X society (seal) B., C. and D., trustees." In the case of public officers, however, the town or city is charged where an intention to do so is shown, though the signature and seal are those of the officer. Hodgson v. Dexter, 1 Cranch, 345; Knight v. Clark, 48 N. J. Law, 22. But see Brown v. Bradley, 156 Mass. 12, contra, hold- ing that there is no distinction between public and private agents. b. Negotiable Paper. 33. A note, "Thirty days from date I promise to pay $1,000," signed " J. 8., agent of A. B" Who is liable on 'the note? Suppose it had been signed "J. S., agent for A. B." If the signature was "J. S., agent of A. B.," the liability would rest on J. S. alone. "Agent of A. B." is treated only as description by the courts. Tucker Mfg. Co. v. Fairbanks, 98 Mass. 101, 104. If, however, the signature was " J. S., agent for A. B.," A. B. would be held liable. The two expressions are not held to be identical. Mechem on Agency, 432. In Colorado, even " agent for " is not held to bind the principal. The general rule is well stated in Tucker Mfg. Co. v. Fairbanks (st/pro), " In order to exempt an agent from liability upon an instru- ment executed by him, within the scope of his agency, he must not only name his principal, but he must express by some form of words that the writing is the act of the principal, though done by the hand of the agent. If he expresses this, the principal is bound, and the 10 QUESTIONS AND ANSWEES. agent is not. But a mere description of the general relation" or office which the person signing the paper holds to another person or corpo- ration, without indicating that the particular signature is made in the execution of the office and agency, is not sufficient to charge the prin- cipal, or to exempt the agent from personal liability." 34. A check is drawn "Pay to order of A. B., cashier " (of a bank), and indorsed by him. Is A. B. liable personally as in- dorser f No. Where negotiable paper is made payable to an agent of a corporation, as such, it is treated as payable to the principal, and an indorsement, "A. B., cashier," is held to be an indorse- ment by the principal. If the check had been payable to A. B. individually, he would have been liable on the indorsement. Bank v. Bank, 29 N. Y. 619; Mechem on Agency, 439. c. Simple, Written and Oral, Contracts. .35. A contract recited that "H., 8. and N., as committee of the town of W./' agreed to pay for certain work. Could they be held personally liable for the payment? Yes. The test is the intention of the parties, as shown by the contract, but a mere description as " agents " or " committee " is not enough to free the agents from personal liability. Simonds v. Heard, 40 Mass. 120; Brown v. Bradley, 156 id. 28. The same rule applies to oral contracts. Worthington v. Cowles, 112 'Mass. 30. X. LIABILITY OF A PRINCIPAL FOE THE TORTS OF His AGENT. a. When the Relation of Principal and Agnt Exists. 36. A. gave certain work to an independent contractor and assigned B., one of his ownemployees, to work for the contractor. C., another one of A.'s employees, was injured by B. Could C. recover from any one ? Yes, from the contractor. When B. began working under the orders of the contractor, he was the contractor's servant and no longer the fellow-servant of C. In cases of tort the man is liable as principal, who has the right of control over the servant doing the injury. Eourke v. Colliery Co., L. R. 2 C. P. D. 205; Johnson v. Boston, 118 Mass. 114. 37. A. was injured by B/s cart. B.'s servant was not driv- ing'at the time, but was on the cart and had allowed a friend to drive. Is B. liable for the injury? Yes. In such cases the friend is looked upon as the instru- ment through which the servant acted, and the master is held. Booth v. Mister, 7 Car. & P. 66; Althorf v. Wolfe, 22 N. Y. 355, 360. AGENCY. 11 38. A warehouse caught fire and B.'s goods were burned. Several servants of the ivarehousemen not connected -with the warehouse were about the premises and could have put the fire out easily if they had acted promptly. Is the warehouseman liable for the loss/ No. The servants committed no tort by refraining from putting out the fire. They were not agents for that purpose; therefore, the defendants are not chargeable with their neglect. Al- drich v. E. E. Co., 100 Mass. 31. . b. What Acts are within the Scope of the Agency. 39. A.'s servant, a truckman, after finishing A.'s business, deviates from the way home for his own personal purposes, and on the road runs over B. Is A. liable for the injury? No. To hold the master, the servant must have been doing the master's business at the time. Here the servant was doing his own business. It is a question of degree, however, how much of a deviation from the proper road will put a servant beyond the scope of his employment. A very slight deviation would not. Story v. Ashton, 10 Best & Smith, 337. Whether or not a servant is acting within the scope of his employment is a simple question of fact. 40. The driver of A.'s delivery wagon drives upon a sidewalk ^partly for the purpose of delivering goods and partly to injure the walk. Is A. liable for the injury? Yes. Where the servant has a mixture of motives, if one of them is to do the master's business, the master is liable, unless the means adopted is beyond reason. Howe v. Newmarch, 94 Mass. 49. Even when the special act done is actually forbidden, if the servant Is doing the master's business, the master is liable for any injury. As where an engineer in running his locomotive disregards orders. R. R. Co. v. Derby, 14 How. 468, 487. There are three phases of the acts of agents: I. Where the servant intends to act for his principal. II. Where there is a mixture of motives, one to act for the master and another to act for himself. The independent motive may be benev- olent as well as malicious. III. Where there is no intention of acting in the course of the mas- ter's service. Each of these phases may have three subdivisions: 1. Where the act does facilitate the master's business, 2. Where it might have been supposed to be in the course of the -"Ynployment if it had not been prohibited. 3. Where the act could not be supposed to be in the course of em- ploynlent, whether prohibited or not 12 QUESTIONS AND ANSWERS. The master is liable for his agent's torts, in I, 1 and 2, II, 1 and 2, and not liable in I, 3; II, 3; and III, 1, 2 and 3. Where there is no intention of acting in the master's business he cannot be held, even if the act aid benefit him. 41. A.'s agent, without authority, but in the course of his employment as bookkeeper, makes false representations by which B. is injured. Can A. be sued in tort for deceit? Yes. The master should be as liable for the deceit of his ser- vant as for any other tort, and that is the general rule. White v. Sawyer, 82 Mass. 586; Barwick v. English, etc., Bank, L. R. 2 Ex. 259; Bennett v. Judson, 21 N. Y. 238. There has been a good deal of conflict, however, about holding a master for deceit, and the law in England is still in doubt. Udell v. Atherton, 7 Hurl. & N. 172. And in New Jersey the principal is held not to be liable for the deceit of his agent. Decker v. Fredericks, 47 N. J. Law, 469. Deceit does differ from other torts in that it must be relied upon by the third party in order to give a right of action. Fraudulent representations are often, of necessity, so involved with the master's- business as to make him liable, though the agent was serving hia own ends. c. The Independent-Contractor Doctrine. 42. What is the difference between an independent contractor and an agent? The difference is in the amount of control which the principal possesses. .In the case of an agent, the principal has the right to direct every individual step. A contractor, however, acts in the " course of an independent occupation, representing the will of the employer only as to result of the work, and not as to means by which it was accomplished." Hexamer v. Webb, 101 N. Y. 377,. 383; R. R. Co. v. Banning, 15 Wall. 649, 657; Lawrence v. Ship- man, 39 Conn. 586. 43. Under what circumstances, if any, is a principal liable for the torts of a contractor? (1) If X. employs Y., a contractor, and Z. is damaged by the result which X. sought, X. is liable. (2) If X. employs Y. to produce a given result and the only means of producing it are necessarily injurious, X. is then liable. (3) If X. is under a duty to Z. and employs Y. to perform it, he is liable for Y.'s failure. (4) In all other cases the principal is not liable for the torts of a contractor. Mechem on Agency, 747, 748; Lawrence v. Shipman, 39 Conn. 586, 589; Storrs v' City of Utica, 17 N. Y. 104; Sturgie Y. Theological, etc., Society, 130 Mass. 414. AGEXCT. 13 XI. As TO CRIMINAL LIABILITY OF A PRINCIPAL FOR ACTS OP AN AGENT. 44. Can a principal be held liable criminally for the acts of his agent? Ordinarily he cannot, as a criminal intent is almost invariably necessary for criminal liability. The only exceptions are (1) where a principal is indicted for nuisance, as the obstructing of a road by his agent, in which case, however, the offense is nearer a tort, Keg. v. Stephens, L. R. 1. Q. B. 702; and (2) where a statute has been passed in such a form that masters are made criminally liable though personally innocent, as in case of a sale of liquor to im- proper persons. George v. Gobey, 128 Mass. 289; People v. Roby, 52 Mich. 577. XII. LIABILITY OF PRINCIPAL FOR INJURY OCCASIONED TO A SERVANT BY THE ACT OF A FELLOW-SERVANT. a. Generally. 45. The X. railroad company allows the Y. railroad com- pany to run on its tracks. A. is hired by the X. company to act as switchman for trains of both companies, and is injured by the negligence of a brakeman of the Y. company. Can he recover ? Yes. The X. company is the one which could exact obedience -from A., and, therefore, he is its servant, and only employees of that company are his fellow-servants. Had A. and B. been fellow- servants, no recovery would have been possible. Swainson v. Ry. Co., 3 Exch. Div. 341. The principle that a master is responsible for the torts of his agent Is not extended to injury by fellow-servants. This " fellow-servant rule " though only sixty years old, is universally accepted. The rea- sons for its original introduction were those of supposed justice to the master, in that the servant could protect himself, if he would, by re- straining his fellow-servant, or remonstrating with his master. This reasoning, however, has lost what little force it may ever have had, in these days when a servant of a large company doesn't even know who his fellow-servants are. It has been frequently stated that a servant contracts to run the risks from the negligence of his fellow-servants when he enters the em- ployment. Farwell v. R. R. Co., 45 Mass. 49, 57. This is a mere fiction, however, as clearly appears in a case where a servant doesn't know who his fellow-servants are. He can't agree to a risk when he doesn't know of its existence. The application of the rule depends simply upon a question of fact, whether men are fellow-servants or not. Johnson v. Lindsay. L. R. 23 Q. B. Div. 508. The rule goes so far as to hold that a mere volunteer, assisting a ser- 14 QUESTIONS AND ANSWERS. rant, cannot recover from the master, if injured. Flower v. Penn. R. K. Co., 69 Penn. St. 210; Ry. Co. v. Bolton, 43 Ohio St 224. See contra, Althorf v. Wolfe, 22 N. Y. 355. 46. A. and B. are fellow-servants. B. injures A.'s wife neg- ligently. Can A. recover from their common master for the loss of his wife's services? Yes. The fellow-servant rule is not extended beyond personal injury suffered by a fellow-servant. Gannon v. R. ft. Co., 112 Mass. 234. b. Who is a Servant within the Meaning of the Fellow-Servant Rule. 47. A. worked for a railroad company, and part of the con- sideration of his hiring was that he should be carried by de- fendant's train to the shops. When being so carried he was injured by a brakeman. Would the company be liable? No. Though A.'s hours of work had not begun when injured, it is held that the conveyance was incident to the employment and that the parties were fellow-servants. Vick v. E. E. Co., 95 N. Y. 267; Seaver v. B. R. Co., 14 Gray, 446. Had A. actually paid his fare, the result would be contrary, and in Pennsylvania it is held that A. is not a fellow-servant in either case. O'Donnell v. ft. R. Co., 59 Penn. St. 239, 247. In order to make men fellow-servants, they need not be doing the same kind of work. It is enough " if they are in the employ- ment of the same master, engaged in the same common work and performing duties and 'services for the same general purposes.'* Laning v. R. R. Co., 49 N". Y. 521, 528; R. R. Co. v. Lewis, 33 Ohio St. 196, 199; Crispin v. Babbitt, 81 N. Y. 516, 521; Beach on Cont. Neg. (1st ed.), . 110, 116; Mechem on Agency, 668; Mc- Kinney on Fell.-Serv. 165. c. Vice-Principal Alter Ego. 48. X., a common laborer in a mill, is injured by the negli- gence of his superintendent. Are the two fellow-servants, or can X. recover from the mill owner? By the best view, they are fellow-servants and X. cannot recover. Their grade does not make them the less- fellow-servants. Howells v. Landore Steel Co., L. R. 10 Q. B. 62; Crispin v. Babbitt, 81 N. Y. 516, 520; McKinney on Fell.-Serv., 58, collecting N. Y. cases. Compare Houser v. R. R. Co., 60 Iowa, 230. A so-called vice-principal rule has obtained in some jurisdictions, however, where it is held that a man in authority is the principal's " alter ego," and when an employee is injured by the vice-principal's AGENCY. 15 negligence, he may recover from the principal. This theory has been adopted in Illinois, Iowa, Kentucky, Missouri, Nebraska, New York, North Carolina, Ohio, Pennsylvania, Tennessee and Virginia. See Lewis v. Seifert, 116 Penn. St. 628; Hardy v. R. R. Co., 36 Fed. Rep. 657; Little Miami R. R. Co. v. Stevens, 20 Ohio, 415, 431; Malone v. Hathaway, 64 N. Y. 5, 0. But see Brick v. R. R. Co., 98 N. Y. 211. The rule in the United States Supreme Court is doubtful. Compare R. R. Co. v. Ross, 112 U. S. 377 *and R. R. Co. v. Baugh, 149 id. 368. The weakness of this vice- principal rule is shown in that it does not work both ways, as the superintendent is treated as a fellow-servant so as to bar his recovery from the master if injured by other servants of lower grade, even though he is not a fellow-servant if he injures them. d. Duty of Principal to Supply Suitable Appliances. 49. The plaintiff, an engineer, was injured by the defects in' his locomotive, which were known to the road superintendent/ Can he recover from the railroad company? Yes. It is the duty of the master to use all due care in supply- ing 'proper tools and appliances for a servant. This duty is not lessened by delegating it to others, and any negligence by the master or his agents, either of high or low degree, in furnishing appliances, makes the master liable. The master, however, is not, an insurer; and where it is proved that there has been no negligence on his part or on the part of the agent delegated to supply the , appliances, there is no liability. Hough v. Ey. Co., 100 U. S. 213; Ladd v. B. E. Co., 119 Mass. 412. It is to be noticed as above stated, that this duty to furnish safe appliances is not affected by the fellow-servant rule. Ford v. R. R. Co., 110 Mass. 240, 255. The same duty rests upon the master to furnish a proper place for the servants to work in. Anderson v. Bennett (Or.), J9 Pac. Rep. 765; Manning v. Hogan, 78 N. Y. 615; McKinney on Fellow-Servants, 72. e. Duty of Principal to Select Competent Agents and to Provide Sufficient Number of Them. 50. A. was injured by the negligence of a fellow-servant, who, however, was not a fit person to do the work to which he had been assigned. Can A. recover? Yes. The duty of the master to furnish proper fellow-ser- vants is the same as that to furnish proper appliances, requiring due care on hi? part, Wabash Ey. Co. v. McDaniels, 107 TJ- S. 454; Tan-ant' v. Webb, 18 C. B. 797. * Since the publication of this book, the U. S. Supreme Court has overruled the Ross ca?e, and has practically declared against the vice-principal rule. New hngland 11. R. Co. v. Conroy, 175 U. S. 85. 16 QUESTIONS AND ANSWERS. f. Agent's Knowledge of Defects. 51. A. goes into an employment knowing of certain defects in the machinery. Can he recover if injured through such defects? Suppose the defects arise after he enters the em- ployment? If the agent knows of the defects when he enters the employ- ment, he accepts the risk and cannot recover later. Gibson v. Erie By. Co., 63 N. Y. 449. If the defects arise later, he also takes the risks if, knowing of them, he says nothing. If he remonstrates and changes are prom- ised, he has a right to wait a reasonable time before he can be held to assume the risk. Clark v. Holmes, 7 H. & N. 937; Ford v. R. R. Co., 110 BJass. 240, 261; Hough v. R. R. Co., 100 U. S. 213. g. Decisions under Statutes Modifying the Common-Law Rule. 52. In a jurisdiction where an employers' liability act is in force, may an employee, by contract, express or implied, agree not to seek the benefit of such a statute, if injured? The best decisions upon principle are to the effect, that he can- not. The act is passed for reasons of public policy, and it is against public policy to allow the intended beneficiary to contract away the benefits of the statute. Kansas Pacific R. R. Co. v. Peavey, 29 Kan. 169; By. Co. v. Spangler, 44 Ohio St. 471, 476; Mecheift on Agency, 671. In England it was held that such a contract could be made. Griffiths v. Earl of Dudley, L. R. 9 Q. B. Div. 357. But a statute was at once passed by Parliament prohibiting such a contract. 53. Where an employers' liability act is in force, does the common-law rule of rolejiti non fit injuria apply? Where such a statute is in force, or where any statute has been enacted for the protection of laborers, the rule of rolenti non fit injuria ought not, in principle, to apply. Such statutes are passed for reasons of public policy, to protect the lives of the laboring classes, and it is as much against public policy to allow the privileges of such statutes to be waived as to allow them to be contracted away. See Ques. 52, supra. Thus, it has been held, that when a statute required certain precau- tions to be taken to protect miners frominjury at the pit of a mine, and a miner was injured by the absence of such statutory precautions, the defense of volenti non fit injuria was not open, for reasons of public policy, to the owner who had violated the statute. Baddeley v. Earl Granville, L. R. 19 Q. B. Div. 423. The principle of the decision seems perfectly sound and ha,s been followed in a number of cases. Bartlett Coal, etc., Co. v. Roach, 68 111. 174; Johnson v. Steam Gauge Co., 146 AGENCY. 17 N. Y. 152; Shepard v. Buffalo, etc., Co., 35 id. 641, 644; Simpson, v. N. Y. Rubber Co., 80 Hun (N. Y.I. 415; Knisley v. Pratt, 75 id. 323. In the last case, however, judgment was reversed by the Court of Appeals, and by the opinion handed down the previous cases seem, in effect, overruled. The court held, that there was " no reason in principle or authority why an employee should not be allowed to assume the obvious risks of the business as well under the Factory Act, as otherwise." Knisley v. Pratt 148 X. Y. 372. See also Free- man v. Glens Falls, etc., Co., 70 Hun (N. Y.), 531, affirmed 142 N. Y. 630. XIII. UNDISCLOSED PRINCIPAL. 54. Upon what ground can an undisclosed principal be held on a contract made by his agent, and what is his liability? The only ground for holding an undisclosed principal is that the agent actually is representing him, and it is simply a case of good luck for the third party that he may sue either the undis- closed principal or the agent as he sees fit. It is plain that the principal is not held on any theory of quasi contracts, for he has to pay the contract price; nor is he held on estoppel, as he has made no representations. The undisclosed principal is liable in an action by the third party in all cases where the latter has not made an election to hold the agent, after knowing of the agency; Thompson v. Davenport, 9 B. & C. 78; or has not so acted as to mislead the principal into supposing that he has been paid by the agent. ' Irvine v. Watson, L. R. 5 Q. B. Div. 414; Fradley v. Hyland, 37 Fed. Rep. 49, 52. 55. What constitutes an election by the third party to hold the agent or the undisclosed principal liable? Election is a question of fact, and the only conclusive evidence of it is the pursuing of the claim of one of the parties to an actual judgment. Curtis v. Williamson, L. R. 10 Q. B. 57. When the principal is a foreigner, however, it is almost a presumption of law in England that th*e domestic agent is the only one to be held. Button v. Bulloch, L. R. 8 Q. B. 331. In this country the question of who is liable is treated as one of fact in all cases. 56. Under what circumstances can the undisclosed principal recover from the third party? He can recover in all cases, except where the third party has acted in reliance upon the representation that the agent is the principal. In such cases the principal stands in the agent's shoes and must suffer any set-off or counterclaim which the third party had against the agent. Borries v. Bank, L. R. 9 C. P. 38. 2 18 QUESTIONS AND ANSWERS. 57. A., acting for an undisclosed principal, draws a bill of exchange. Can the principal be sued on the bill? Suppose A. had signed a sealed instrument? a written contract? Owing to the peculiar nature of bills and notes and sealed in- struments, the doctrine of an undisclosed principal does not apply to them. Only parties which appear on such instruments are liable. Pentz v. Stanton, 10 Wend. 271, 275. In the case of an ordinary written contract, however, the prin- cipal is liable. Beckham v. Drake, 9 M. & W. 79, 91. t XIV. TERMINATION OF THE AGENCY. a. Revocation by Principal. 58. A.'s agent, by express authority, contracts for the sale of certain goods, but before he has made a memorandum in writing, to satisfy the Statute of Frauds, A. revokes the authority. Is A. freed from liability? Yee. The contract was made by express authority and was perfectly good, but it cannot be enforced without a memorandum in writing. Farmer v. Robinson, 2 Camp. 339, note. 59. By the express contract of hiring, A. agreed that the authority given his agent to sell goods should not be revoked for six months. A. does revoke before that time. Can the agent continue to act? No. The principal has the power to revoke the authority given an agent in every case, except where the agency is coupled with an interest in the thing itself, independent of the compensation. See Ques. 62, infra. The principal may be liable to the agent in damages for the revocation, but that will not affect his actual power to revoke. Blackstone v. Buttermore, 53 Penn. St. 266; Parke v. Frank, 75 Cal. 364, 368; Stensgaard v. Smith, 43 Minn. 11; Hunt v. Eousmaniere, 8 Wheat. (U. S.) 174, 203.. 60. A. represents that his agent has extensive powers for an unlimited time, and then revokes the authority without giving notice to those who had previously dealt with the agent. Is A., liable on contracts made with the agent after the revocation, by persons who still suppose that A. is principal? Yes. Though the revocation was good, yet, after representing that the agent had such wide powers, A. would be estopped to deny that he was still principal.' Under such circumstances he must give notice of the revocation of authority to those who are likely to be misled. Tier v. Lampson, 35 Vt. 179, 182. AGENCY. 19 b. Revocation by Death. 61. A.'s agent had authority to draw money from the bank, and the bank,, before A.'s death was known, cashed one of the agent's checks drawn after A. died. Does an action lie against the bank? Yes. Death terminates the agency instantly, and in revocation by death, the question of estoppel is no longer considered, so that the ignorance of the bank will not save it. It has dealt with a person who had no authority, and is responsible to the estate. Davis v. Windsor Savings Bank, 46 Vt. 728. Persons dealing with agents run the risk of revocation by death. Weber v. Bridgman, 113 X. Y. 600, 605. The rule seems harsh, but is fixed. An agent cannot represent a person after he is dead, and personal representa- tion underlies the entire law of agency. In Pennsylvania it is held iu Cassidy v. McKenzie, 4 Watts & Serg. 282, that where an agent acts in ignorance of his principal's death, the contract is not void, but this goes on the idea of the Roman Law, of charging the estate of the deceased. On common-law principles such a decision is not sound. 62. A. gives his agent authority to sell property and from the proceeds to pay himself a debt due from A. Would the death of A. revoke the agent's authority? Xo. This is a case where the authority is coupled with an interest, and is, therefore, irrevocable by death or otherwise. The agent's interest is in the nature of a lien. Marzion v. Pioche, 8 Cal. 522, 536; Gaussen v. Morton, 10 B. & C. 731; Hutching v. Hebbard, 34 X. Y. 24, 27. c. Revocation by Insanity. 63. After A. becomes insane, his agent, B., makes a contract with C., who knows of A.'s condition, and another contract with D., who is ignorant of it. What are the rights of C. and D. upon the contracts? C.'s contract is invalid and D.'s is perfectly good. The insanity of the principal is held to be a revocation, or at least a suspension of authority; Davis v. Lane, 10 X. H. 156; except as to innocent third parties, who are protected. Drew v. Xunn, L. E. 4 Q. B. Div. 661. The reason for the rule of revocation by insanity is the same as that for revocation by death, i. e., that the relation of agency can exist only so long as there is a principal capable of acting. The rule is not logically carried out, however, jn that innocent third parties are protected in the case of insanity, while in the case of death innocence is of no avail. 20 QUESTIONS AND ANSWERS. The insanity of the agent, also, of course terminates the relation. The mental soundness of the agent is a condition precedent, except where the agent has a power coupled with an interest. State v. Greesdale, 106 Ind. 364, 366; Graver's Appeal, 50 Penn. St. 189; Bartlett T. Hamilton, 40 Me. 435. d. Revocation by Bankruptcy. 64. After A/s bankruptcy, his agent makes a contract in A.'s name. Is it good? No. When a man is adjudicated a bankrupt, the power of his agent to bind his bankrupt estate ceases. That power is thereby taken out of his hands. Drinkwater v. Dowding, Cowp. 251; Minett v. Forrester, 4 Taunt. 541; Parker v. Smith, 16, East, 382. Mere insolvency, however, is not enough to vitiate the contract. Mechem on Agency, 264. The bankruptcy of the agent also terminates the relation unless his acts are merely ministerial. Audenr.ied v. Betteley, 8 Allen (Mass.), 202; Hudson v. Granger, 5 Barn. & Aid. 27. e. Revocation by War. 65. A principal lives in Spain and the agent in this country. What effect would war between the countries have upon the relation? As a general rule war operates as a dissolution of the relation. Business relations between the two countries have become illegal and communication between the parties has become impossible. Ins. Co. v. Davis, 95 U. S. 425. XV. EIGHTS AND LIABILITIES OF PRINCIPAL AND AGENT IN- TER SE. a. Generally. 66. ~A. was appointed treasurer of a horse show without compensation. Owing to his failure to accept the appointment, B. could not get a premium to which lie was entitled. Is A. liable? No. It is always possible to create an agency without com- pensation, i. e., by appointment, provided the appointment is ac- cepted, but the way of showing an acceptance is by acting, and there was only a failure to act here, which shows rather a non- acceptance. The rule is usually stated that a gratuitous agent is only liable .for malfeasance, and -not liable for nonfeasance. Balfe y. West, 13 C. B. 466; Mechem on Agency, 478; Thome v. Deas, 4 Johns. (N. Y.) 84. But the real reason for not holding the gratuitous agent in a case of nonfeasance seems to be, as sug- gested, that the relation of agency has never arisen. After the AGENCY. 21 gratuitous agent has once begun to act, and so accepted the agency and its duties, he is subject to all its liabilities. Mechem on Agency, 478; Williams v.Higgins, 30 Md. 404; Spencer v. Fowles, 18 Mich. 9. 67. A. appoints B. a gratuitous agent. B. ads to the best of his ability, but is totally unfit for the work. Has A. any right to recover for injury suffered? No. A gratuitous agent is only required to use such skill as he has, and is not liable if not actually negligent. He differs materially from a paid agent who must use such skill as a reason- able man would under the circumstances. Shiells v. Blackburne, 1 H. Blackstone, 158; Wilson v. Brett, 11 M. & W. 113. 68. A. consigned goods to B. } with orders not to sell below a certain price. B. made advances on the goods, and as A. failed to repay them, he sold the goods at the best price possible, but below the price fixed by A. Is he liable for so doing? By the American rule he is not. The consignee is always given a right to protect himself for advances, in spite of instructions. Parker v. Brancker, 39 Mass. 40; Field v. Farrington, 10 Wall. (U. S.) 141. He may also refuse to sell if told to do so at a price too low to reimburse him. Weed v. Adams, 37 Conn. 378. By the English rule B. would be liable for the sale. There a factor making subsequent advances has none of the rights of a pledgee. Smart v. Sanders, 5 C. B. 895, 914. And even if the advances are cotemporaneous, the English factor has none of the pledgee's powers if they are not expressly stipulated for in the contract. De Comas v. Frost, 3 Moore, P. C. (N. S.) 158. 69. An agent collects money for his principal and puts it with some of his own in a money drawer. All of the money is then stolen without the fault of the agent. Is he in any w9y liable? The agent would be liable for the whole amount. Any mixture of the principal's money makes the agent a mere debtor, and no longer a trustee, and after becoming a debtor he is liable abso- lutely. Mechem on Agency, 529. Wherever the identity of the money is lost, the result is the same, even if the agent depos- ited the money in a bank in a separate account, but in his own name. Naltner v. Dolan, 108 Ind. 500. b. Agent Acting under Del Credere Commission. 70. Is a parol del credere commission bad under the Statute of Frauds? 22 QUESTIONS AND ANSWERS. No. A del credere factor does guarantee the payment of the debts to be collected, but his contract is more than a contract of guaranty, and is not within the meaning of the statute as to the payment 'of the debts of third persons. Wolff v. Koppel, 5 Hill (N. Y.), 458. 71. Has a del credere factor a right to have the debt of his principal "written off'.' against a debt of his own? No. He is not relieved from the ordinary obligation of an agent to receive the payment for the principal, even though he has guar- anteed the payment. He may become bankrupt himself. Cot- terall v. Hindle, L. R. 1 C. P. 186. e. Bad Faith of Agent. Inconsistent Positions and Secret Profits. 72. A. appoints B. his agent to sell property for $17,000. B. makes a bona fide contract for that amount, and then learns that he can get. $26,000, whereupon he gets a release of the first contract and sells for $26,000 in his own name, and hands over to A. $17,000. Has A. any action for the remaining $9,000 ? Yes. B., as an agent, was in a fiduciary relation which de- manded the utmost good faith on his part. Even if his first con- tract was bona fide and $17,000 was the price fixed by A. himself, still when B. found that he could do better for his principal, that was his legal duty. The relation of principal and agent is guarded most carefully by the courts, and no transactions are allowed whose effect or tendency is to benefit the agent at the expense of the principal. Bain v. Brown, 56 N. Y. 285. 73. A. writes B. to buy him certain stock at not more than $150 per share. B. writes that lie has bought at that price, and sends some shares of his own. Can B. recover the purchase pfice ? No. Though the agency was gratuitous, and even if B. was perfectly honest, the fiduciary relation between the parties was such that B. could not buy from himself without A.'s knowledge. Conkey v. Bond, 36 N. Y. 427. And even where a trade custom is proved, by which an agent can transfer his own property to the principal, it is held that the custom will not be effective unless the principal knew of it, as by it the agent is placed in an incon- sistent position. Robinson v. Mollett, L. R. 7 H. of L. 802; Butcher's Sons v. Krauth, 14 Bush (Ey.), 713. 74. A committee of fourteen men is appointed to carry out cer- tain public improvements. Could a firm composed of two of their members take the contract to do the work? AGENCY. 23 Xo. Though by no means a majority of the board, the two members of the committee would have no right to place them- selves in a position hostile to the public interests. People v. Town- ship Board, 11 Mich. 222. 75. A. leases a building for business purposes. Can his agent in the business legally contract for a renewal of the lease to himself, personally, without A/s. knowledge? No. As long as a man is an agent, he is held strictly to his fiduciary duty. The good-will of the lease is a valuable interest to A., and his agent cannot tamper with it. Davis v. Hamlin, 108 111. 39. 76. A. employs B. to furnish him with information regarding certain tracts of land in order that he may purchase it. B. hinders A. somewhat, and then buys the land himself. Has A. any remedy? Yes. He can hold B. as a trustee of the land so acquired or compel him to account for the value of it. Winn v. Dillon, 27 Miss. 494; Gardner v. Ogden, 22 X. Y. 327; Haight v. Pearson, 39 Pac. Rep. 479. In Massachusetts, however, the law is contra, and A. would have no remedy, on the ground that B.'s duty was not such as to deprive him of the right to buy. Collins v. Sullivan, 135 Mass. 461; Emerson v. Galloupe, 158 id. 146. But see Mechem on Agency, 469. 77. A. is employed by B. to purchase land on commission, and by C. to sell. Can he under any circumstances earn the com- mission from both? He can, if both parties know the facts. Bell v. McConnell, 37 Ohio St. 396; Redfield v. Tegg, 38 N. Y. 212; Rebinson v. Jarvis, 2-3 Mo. App. 421. Where either or both of the principals are ig- nc-ant of the agent's attempt to earn double commissions, he cannot get them from either, and that irrespective of the agent's honesty. The dangerous tendency of such transactions is the thing consid- ered. Scribner v. Collar, 40 Mich. 375; Rice v. Wood, 113 Mass. 133; Bell v. McConnell (supra). 78. A., a broker, is employed as a middleman by both B. and C., the one wishing to sell and the other to buy. Without their knowledge of the facts he introduces them to each other and they make a contract themselves, in which A. takes no part. Can A. recover his commissions from both? The better view is that he cannot. To allow it produces the temptation that the agent will bring together only those who have employed him. Mechem on Agency. 953, 973; "Walker v. Osgood, C8 Mass. 348. But see contra, Siegel v. Gould, 7 La.ns. 177; Orton v. Scofield, 61 Wis. 382. 24 QUESTIONS AND ANSWEKS. 79. A., plaintiff's intestate, was insured in the X. company; the company agreed to cancel the policy and return the premium notes and sent them to B., A.'s agent, to whom A. had given the policy, with instructions to surrender it. Before the notes were canceled, B. applied to have the policy reissued to him. The policy was reissued to B., and A. thereafter died. What rights has A.'s administrator? He can compel B. to account for the advantage thus obtained. It makes no difference if the agent did use his own money to obtain this advantage. Dutton v. Willner, 52 N. Y. 312, 319. d. Agent's Right to Compensation. 80. A. employed B. to act as selling agent on commission. A. accepted orders which B. procured and then refused to de- liver the goods or to pay B.'s commissions. Has B. a right of action ? Yes. B. had done everything to earn his commission, when he procured a good order which A. accepted. If the transaction then failed through A.'s fault, B. is not to suffer. Lockwood v. Levick, 8 C. B. (N. S.) 603. In Trapp v. Wallace, 41 N. 1. 477, A. wanted to purchase real estate, and B. in good faith introduced C. to him who had property he wished to sell. A contract was entered into which A. subsequently re f used to carry out because C. could not give a good title. It was held, however, that it was no answer to B.'s claim for commission, that the title was defective, on the ground that B. did not undertake that It should be good. The contract did not make his commissions depend upon the validity of B.'s title. 81. A. employed B. to sell all of the coal from his colliery that should be sent to L. A. then sold his colliery. Has B. any right to recover commissions? No. A. made no contract that coal should be sent to L., and he could ship to other points or sell the colliery. Ehodes v. For- wood, L. E. 1 App. Gas. 256. But compare Lewis v. Ins. Co., 61 Mo. 534, where it was held that the insolvency of a com- pany did not terminate its liability upon contracts with its agents, and that they must be paid though the company was not allowed to do business by the State authorities. XVI. RIGHT OF PRINCIPAL TO RESCIND. 82. When an agent and a third party have secretly agreed to make a contract for defrauding the principal, what are the lat- ter' s remedies? AGENCY. 25 If the principal acts before the rights of third parties have be- come involved, he may recover his property and have the contract rescinded. In any case the third party and the agent are liable for the injury to the principal. Panama Teleg. Co. v. India Rubber Co., L. E., 10 Ch. App. 515; Atlee v. Fink, 75 Mo. 100. 83.. A/s agent, B., was secretly in the employ of C., when he executed a contract for A. with C. The terms, however, were perfectly fair to A. May he still object? Yes. The double agency is a fraud upon the principal, what- ever the results or the intentions of the parties, and he may, by acting promptly, rescind the whole contract and recover back his property. Panama Teleg. Co. v. India Rubber Co., L. R. 10 Ch. App. 515; Atlee v. Fink, 75 Mo. 100; Ins. Co. v. Ins. Co., 14 N. Y. 85, 90. Compare Hinckley v. Arey, 27 Me. 362; Coltons v. Holli- day, 59 111. 176. BANKRUPTCY. I. JURISDICTION. 1. What courts have jurisdiction of 'bankruptcy proceedings? The District Court of the United States for the district within which the bankrupt had his principal place of business, resided or had his domicile for the greater portion of the six (6) months preceding the filing of the petition. 1 (8) and 2 (1).* 2. What is the effect of the Bankruptcy Act upon State insol- vency laws? All State insolvency laws applying to the same persons as the Bankruptcy Act are suspended by the passage of the act, but in so far as such laws do not conflict with the federal law they are valid and continue operative. Sturges v. Crowningshield, 4 Wheat. 122 ; Ogden v. Saunders, 12 Wheat. 213; Ketchum v. McNamara, 6 Am. B. E. 160, 72 Conn. 709. II. "VOLUNTARY PROCEEDINGS. a. How Instituted. 3. Who may file a petition, where and how filed, fees, etc.? Any person who owes debts except a corporation may file a voluntary petition. 4a. The petition, to which is annexed a complete schedule of assets and liabilities (form 1), is filed in the District Court in triplicate, 7a (8), and must be accompanied by a filing fee of thirty dol- lars, 40a, 48a, 52a, unless the petition is accompanied by an affidavit that the petitioner is without and cannot obtain the money with which to pay such fees. ola (2). b. Partnership Proceedings. 4. If one partner wishes to fie a partnership petition and the other partner refuses to join, what is the procedure? The Bankruptcy Act treats a partnership as an entity. One petition only is filed in a partnership proceeding (form 2), though a set of schedules of the partnor^hiT) assets and liabilities and a separate schedule of assets and liabilities for each partner must be annexed thereto. * All references by section are to the Bankruptcy Act of July 1. 1898. as amended February 5. 1903. References to general orders and forms are to those adopted by the Supreme Court under said act. -26 BANKRUPTCY. 27 The entity theory, however, does not prevent the adjudication of the partnership upon a petition in which one partner refuses to join. The petitioning partner files schedules for himself and for the partnership and accompanies his petition with a request for a subpcena to be served upon the nonassenting partner as in involun- tary cases. Collier on Bankruptcy (5th ed.), 70, 72. The latter may appear and make any defenses and in case of an adjudication must file an individual schedule of assets and lia- bilities. Gen. Ord. VIII. 5. A., being a member of a partnership, files an individual peti- tion. The firm has no assets. Do the partnership creditors share with A.'s individual creditors in the distribution of his estate? Xo. The general rule is that in bankruptcy partnership prop- erty is appropriated to the payment of partnership debts and the individual property of each partner to the payment of his indi- vidual debts. of. It has been held that an exception to this rule exists when there are no- firm assets and no solvent living partner. Conrader v. Cohen, 9 Am. B. R. 619. 121 Fed. 801 (C. C. A. 3d Cir.) ; In re Green, 116 Fed. 118, 8 Am, B. R. 533. The weight of authority, however, under the present Act seems to be in favor of the rule without exception that joint assets belong to joint creditors and individual assets to individual creditors. In re Janes, 133 Fed. 912, 13 Am. B. R. 341 (C. C. A. 2d Cir.) ; In re Wilcox, 2 Am. B. R. 117, 94 Fed. 84; In re Henderson, 16 Am. B. R. 91, 142 Fed. 588. III. INVOLUNTARY PROCEEDINGS. 6. Against whom may a petition be filed? A petition may be filed against any natural person (except a wage- earner or farmer), anv unincorporated company and any corpora- tion engaged principally in manufacturing, trading, printing, pub- lishing, mining or mercantile pursuits, owing debts to the amount of one thousand dollars or over, 4b, who is insolvent and has committed an act of bankruptcy within four months. 3b. An act of bankruptcy consists in (1) conveying or concealing property with intent to hinder, delay or defraud creditors, or (2) trans- ferring while insolvent property to one or more creditors with in- tent to prefer them over other creditors, or (3) permitting while insolvent anv creditor to obtain a preference through legal pro- ceeding? and not having at least five days before the sale of any property affected by such preference vacated or discharged such preference, or (4) made a general assignment for the benefit of his creditors, or being insolvent applied for a receiver or trustee for his property, or because of insolvency a receiver has been nut in charge of his property, or (5) admitted in writing hi? inability to pay his debts and his willingness to be adjudged a bankrupt. 28 QUESTIONS AXD ANSWERS. 7. A judgment is entered against A. without his "knowledge or consent and he fails to vacate or discharge it at least five days be- fore the sale of the property but without any intent to prefer the creditor obtaining the judgment. Has he committed an act of bankruptcy? Yes. Mere passive nonresistance is sufficient and the intent of the debtor is not an element. Matter of Rung Furn. Co., 14 Am. B. R. 12 (C. C. A. 2d Cir.) ; Wilson Bros. v. Kelson, 183 U. S. 191, 7 Am. B. R. 142. The rule was otherwise under the law of 1867. Wilson v. City Bank, 17 Wall. 473. 8. Who may file an involuntary petition? Three or more creditors who have provable claims amounting in the aggregate to $500 or over, or if all the creditors are less than twelve then one of such creditors whose claim equals such amount. 59b. IV. PROVABLE DEBTS. 9. A. has a claim against B. for unliquidated damages resulting from injury to his property. B. is adjudged a bankrupt. (a) Can A. prove his claim against the estate and receive a divi- dend thereon? (b) Would the result be different if he had recovered judgment on his claim before the adjudication? (c) Suppose the claim were one for conversion of his property? (a) No. The general rule under previous bankruptcy acts was that liabilities ex delicto were not provable debts. Section 63a gives a list of debts which may be proved. Section 63b states that unliquidated claims may upon application to the court be liqui- dated and thereafter proved and allowed. It was thought that par. b added to the list of debts provable. under par. a, and that under it debts grounded in tort might be liquidated and then proved. Collier on Bankruptcy (5th ed.), 479. It is now well settled, however, that such is not the effect of par. b, but that its only purpose is to permit an unliquidated claim coming within the provision of par. a to be liquidated. Brown v. United Button Co., 17 Am. B. R. 565, 149 Fed. 48 ; Dunbar v. Dunbar, 190 U. S. 340, 10 Am. B. R. 139. The same rule of course applies to claims for damages resulting from injury to the person and it has accordingly been held that a claim for damages for wrongfully can<=insr death is not provable. Matter of X. Y. Tunnel Co., 20 Am. B. R. 25 (C. C. A. 2d Cir.). (b) Yes. Section 63a (1) provides for the proof of a debt evidenced by a judgment whether based upon an action in contract or tort. (c) Since in conversion the plaintiff may waive the tort and eue in assumpsit a claim for conversion of pronerty is a provable debt under section 63a (4) which authorizes the proof of a debt BANKRUPTCY. 29 " founded upon an open account or upon a contract express or implied." Crawford v. Burke, 12 Am. B. R. 659, 195 U. S. 176. . 10. A. is indorser on a note and before the note falls due is adjudged a bankrupt. Is his liability as indorser a provable debt against his estate? Yes. It was at first held that since the liability of the indorser was contingent merely at the time of filing of the bankruptcy peti- tion it was" not a provable debt not being a " fixed liability " * * * "absolutely owing at the time of the filing of the peti- tion" under section 63a (1) In re Schaefer, 5 Am. B. R. 92, 104 Fed. 9T3. It seems now. however, to be well settled that such a liability is provable under section 63a (4) which provides for the proof of claims " founded upon an open account or upon a contract express or implied." In re Gerson, 6 Am. B. R. 11, 107 Fed. 897. 11. A. has a claim against the bankrupt based upon a note which is secured by indorsers who are responsible. Can he prove the claim and receive a dividend upon the full amount? Yes. Though one who has a secured claim can only prove it for the excess, if any, of the claim over the value of the security, 57e, the Bankruptcy Act defines a secured creditor as one " who has security for his debt upon the property of the bankrupt." 1 (23). Though his claim is fully secured by the indorsements on the note he may prove and receive a dividend upon the full amount since the security is not upon the property of the bankrupt. In re Xoy es Bros -> 127 Fed - 28G > n Am - B - K. 506 (C. C. A. 1st Cir.). V. ELECTION OF TRUSTEE. 12. At the first meeting of creditors the attorney for the bank- rupt presents proofs of claims and powers of attorney from a ma- jority in number and amount of the creditors whose claims have been allowed and irho are represented at the meeting and offers to vote them for the election of B. as trustee. Will he be permitted to vote them, and if so will the election of B. as trustee be con- firmed by the Referee? The act provides for the election of the trustee by creditors and the courts will not tolerate any attempt on the part of the bank- rupt to control the election and thereby secure a trustee favorable io his interests. If it appears that claims presented have been solicited by the bankrupt and are voted in his interest, the Referee will either refuse to permit them to vote or refuse to confirm the election. In re Dayville Woolen Co., 114 Fed. 674, 8 Am. B. R. 85. A? in such case the interests of the creditors and of the bank- rupt are diverse the attornev for the bankrupt will not ordinarily be allowed to represent creditors or to vote their claims. 30 QUESTIONS AND ANSWERS.? VI. TITLE OF TRUSTEE. 13. A. sells goods to B. upon conditional bill of sale reserving title in himself until goods are paid for. The bill of sale is not recorded as required by statute of the state where sale is made. B. is adjudged a bankrupt, the goods being in his possession and tin paid for. Does his trustee take title to them? The general rule is that the trustee takes the property of the bankrupt, in cases unaffected by fraud, in the same plight and condition that the bankrupt himself held it and subject to all the equities impressed upon it in the hands of the bankrupt. Where therefore the statute (as in New York) provided that an unre- corded bill of sale was void only as against subsequent purchasers or pledgees or mortgagees in good faith it was held good as against the trustee in bankruptcy. Hewitt Tr. v. Berlin Machine Works, 194 U. S. 296, 11 Am. B. E. 709. The trustee, however, represents the general creditors of the estate, and where the language of the statute is such that an un- recorded bill of sale is invalid as against creditors it has been held to be invalid as against the trustee in bankruptcy. In re Yukon Woolen Co., 2 Am. B. E. 805, 96 Fed. 326; Bradley v. Mc- Afee, 17 Am. B. E. 495. In Ohio an unrecorded bill of sale is void as against creditors,, but the State court has held that only creditors who have taken steps to fasten upon the property for the payment of their debts can take advantage of the statute. The U. S. Supreme Court adopting this construction of the statute decided that when there are no creditors who have attached the property the trustee takes no title to it, holding that the adjudication does not operate as an attachment. York Mfg. Co. v. Cassel, 201 U. S. 344, 15 Am. B. E. 633. If, however, prior to the bankruptcy a creditor had attached the property so that under the statute he was in a position to attack the conditional sale, although his attachment was vacated by the adjudication, the trustee under section 67 of the act would lie sub- rogated to his rights' and entitled to the proceeds of the sale of the property to the extent of the claim of the attaching creditor. In re N. Y. Econom. Printing Co., 6 Am. B. E. '615, 110 Fed. 514 (C. C. A. 2d Cir.) ; First Nat. Bank v. Staake, 15 Am. B. E. 639, 202 U. S.' 141. 14. A. is induced to sell goods to B. by materially false repre- sentations. B. having the goods in his possession is adjudged a bankrupt. Can A. recover the goods, and if so how? False representation? made as a basis for credit entitle the seller to reclaim the goods, and since the trustee has no better title than the bankrupt had he takes the goods affected with tbe fraud of the bankrupt. The property being in the custody of the Bank- ruptcy Court is not subject to replevin in the State court. In re BANKRUPTCY. 31 Eussell and Birkett, 3 Am. B. R. 658, 101 Fed. 248 ; In re Mertens, 12 Am. B. R. 698, 131 Fed. 507. The creditor may, however, file in the Bankruptcy Court his petition to reclaim the goods upon a rescission of the sale and upon proof of his case obtain an order that the trustee surrender pos- session of them. In re Weil, 7 Am. B. R. 90, 111 Fed. 897. Property consigned to the bankrupt may be recovered in a similar procedure. 15. A. mingles a trust fund in one bank deposit with moneys of his own and draws upon the deposit from time to time: Upon his adjudication as a bankrupt can the real owner of the fund re- cover it in preference to other creditors of the estate? The well-established rule in equity is that the owner of a trust fund may follow it into whatever form it may have been converted and though in the case of money it has been mingled in one mass with other money of the trustee. In re Hallet's Estate, 13 Ch. Div. 696, 36 Eng. Eep. 779.. The rule is that any drafts npon the deposit thus mingled are presumed to have been made against the trustee's own share of the deposit and that what is left belongs in equity to the cestui yue trust. But the mere misapplication of trust funds does not give the defrauded beneficiary a general priority over other cred- itors of the trustee. The trust fund must be distinctly traced into the estate of the bankrupt and be shown to exist there in some shape at the date of the bankruptcy. If the fund cannot be shown to have been deposited in the bankrupt's bank account or invested in some specific property which is a part of his estate, or if having been so deposited the bankrupt has drawn against it so that neither Ids own share of the deposit or the trust fund is still in existence, then the beneficiary must share pari passu with the general cred- itors of the estate. In re Mulligan, 9 Am. B. R. 8, 116 Fed. 715. The burden of tracing the trust fund into the property claimed rests upon the beneficiary though he may be assisted in bearing it by the legal presumption above referred to concerning the joint account. In re Marsh, 8 Am. B. R. 576, 116 Fed. 396. VII. EXEMPTIONS. 16. What property may the bankrupt retain as exempt? The Bankruptcy Act do.es not grant any specific exemptions to the bankrupt, but provides that he shall be entitled to the exemp- tions allowed by the laws of the State of his domicile. 6. They should be claimed by the bankrupt in Schedule B (5) attached to his petition. It is the duty of the trustee within twenty day? of his appointment to set out to the bankrupt his exemptions, and anv creditor may take exception to hi action within twenty days after the report is filed. Gen. Ord. XVII. 32 QUESTIONS AND ANSWERS. 17. A. files a petition in bankruptcy and schedules a life in- surance policy which has a cash surrender value payable to him- self. By the laws of the State of his domicile such insurance is exempt. Is the trustee entitled to the cash surrender value of the policy t "While section 6 of the act adopts for the purpose of the bank- ruptcy proceedings the exemptions allowed by the laws of the several States, section 70a of the act provides that when a bankrupt has an insurance policy which has a cash surrender value payable to himself, he may by paying over the amount of such cash sur- render yalue to his trustee hold the policy free from the claims of his creditors. It was held in In re Scheld, 5 Am. B. B. 102, 104 Fed. 870, that the effect of section 70a was to limit the broad terms of section 6, adopting the State exemption laws and that the trustee was entitled to the cash surrender value. The contrary doc- trine has, however, been finally adopted by the Supreme Court and the bankrupt is entitled to the exemption. Holden v. Stratton, 198 U. S. 202, 14 Am. B. E. 94. VIII. EXAMINATION OF BANKRUPT. 19. May the bankrupt upon his examination be compelled to answer a question the answer to which would tend to incriminate him f No. Section 7a provides that " no testimony given by the bank- rupt shall be offered in evidence against him in any criminal pro- ceeding." It has been held, however, that this does not grant him the immunity contemplated by section 5 of the Constitution of the United States. Counselman v. Hitchcock, 142 U. S. 565; In re Nachman, 114 Fed. 995, 8 Am. B. E. 180; In re Bosser, 96 Fed: 305, 2 Am. B. E. 755; In re Feldstein, 103 Fed. 269, 4 Am. B. E. 321. The refusal of the bankrupt, however, to answer any material question approved by the court is by the amendment of 1903, 14b (6), made a ground of objection to his discharge. IX. PREFERENCES AND LIENS. 20. A., being insolvent and indebted to B., gives him a mort- gage upon his property in part to secure the existing indebtedness and in part to secure a loan made at the time the mortgage is given. Within four months he is adjudged a bankrupt. Under what circumstances would the mortgage' be held invalid, and if so whether in whole or in part? The mortgage is good in any event to the extent of the loan made at the time it was given since to that extent the mortgagee gets no preference over other creditors. If at the time the mort- gage was given the mortgagee had reasonable ground for believing that it was intended to give him a preference the mortgage is BANKRUPTCY. 33 invalid to the extent of the pre-existing indebtedness. City Nat. Bank v. Bruce, 109 Fed. 69, 6 Am. B. E. 311 (C. C. A. 4th Cir.) ; In re Furse & Co., 127 Fed. 690, 11 Am. B. E. 733 (C. C. A. 4th Cir.) ; Grant v. Nat. Bank, 97 U. S. 80; Stuckey v. Sav. Bank, 108 IT. S. 74. The question of whether the mortgagee has reasonable ground for believing that it was intended to prefer him is one of fact for the jury. This includes reasonable ground for believing that debtor is insolvent and that he will obtain a larger percentage of his debt than other creditors in his class. The intent of the debtor is im- material. Loveland on Bankruptcy (3d ed.), 561. 21. A. brings suit against B. in which he attaches his property and in due course obtains judgment. Within four months after the entering of the judgment but more than four months after the attachment, B. is adjudged a bankrupt. Does the adjudication dissolve the lien of the attachment? No. Section 67f provides that the adjudication dissolves "all levies, judgments, attachments or other liens obtained through legal proceedings" within four months. Although the judgment was obtained within four months of the bankruptcy, since it was a judgment in enforcement of pre-existing lien which was not dis- solved, having been in existence more than four months, it is not affected by the provision of this section which refers to judgments creating liens. Metcalf v. Barker, 187 TJ. S. 165, 9 Am. B. E. 36; In re Beaver Coal Co., 110 Fed. 630, 6 Am. B. E. 404; In re Blair, 108 Fed. 529, 6 Am. B. E. 206; In re Snell, 125 Fed. 154, 11 Am. B. E. 35. 22. 7s a mechanic's lien filed within four months of 'bankruptcy proceedings valid as against the trustee? Only liens obtained through legal proceedings are invalidated by section 67c and f. A mechanic's lien although filed within four months of bankruptcy is therefore valid and has been so held even though it was inchoate at the time of the adjudication and further action was necessary after that date in order to perfect it. In re Grissler, 136 Fed. 754, 13 Am. B. E. 508 (C. C. A. 2d Cir.), over- ruling In re Eoeber, 121 Fed. 449, 9 Am. B. E. 303; In re Georgia Handle Co., 109 Fed. 632, 6 Am. B. E. 472 (C. C. A. 5th Cir.) ; In re Emslie, 4 Am. B. E. 126, 102 Fed. 291 (C. C. A. 2d Cir.). X. SALE OF ASSETS. 23. The property of a b-anJcrupt is subject to liens which maJcc it difficult for the trustee to obtain anything for the equity if the property is sold subject to liens. Can he sell it free and clear of the liens? No specific authority is given in the Act of 1898 to order a sale of property free of incumbrances., but it is well settled that the 3 34 QUESTIONS AND ANSWERS. court has power to make such an order, in which case the lien is transferred from the property to the fund produced by its sale, and the Bankruptcy Court may determine the rights of the lien claimants. Loveland on Bankruptcy (3d ed.), 742; Collier on Bankruptcy (5th ed.), 570; In re Granite City Bank, 137 Fed. 818, 14 Am. B. R. 44)4 (C. C. A. 8th Cir.) ; In re Union Trust Co., 122 Fed. 937, 9 Am. B. R. 767 (C. C. A. 1st Cir.) ; Chauncey v. Dyke Bros., 119 Fed. 1, 9 Am. B. R. 444 (C. C. A. 8th Cir.) ; Carroll Co. v. Young, 119 Fed. 576, 9 Am. B. R. 643 (C. C. A. 3d Cir.). XI. DISTRIBUTION OF THE ESTATE. a. Priority Claims. 24. Employee of bankrupt presented claim for wages earned more than three months before the bankruptcy. The State statute allowed priority to all wages earned within one year. T>Yas the claim entitled to priority? No. Section 64b (4) allows priority to wages earned within three months of the bankruptcy proceedings and section 64b (5) allows priority to " debts owing to any person who by the laws of the State or the United States is entitled to priority." Since clause 4 contains a specific provision regarding wages it is the exclusive rule as to their priority in spite of the different rule stated in the general provision of clause 5. In re Slomka. 122 Fed. 630. 9 Am. B. R. 635 (C. C. A. 2d Cir.) ; In re Rouse, Hazard & Co., 91 Fed. 96, 1 Am. B. R. 234 (C. C. A. 7th Cir.). b. Payment of Dividends. 25. A. presents a claim against a bankrupt estate witliin one year after the adjudication but subsequent to the declaration of a dividend. Can he share in the dividend? What if the final divi- dend has been declared and the estate closed? The Bankruptcy Act fixes no definite limitation of time for the presentation of claims against estates except the negative one that no claims may be proved subsequent to one year after the ad- judication. 57n. This does not mean, however, that creditors have a year in which to present their proofs and share in dividends. Trustees are required to close up estates " as expeditiouslv as in- compatible with the best interests of the parties in interest." 47 (2). They may pay out all the funds in their hands and close the estate and creditors subsequently presenting claims, al- though within the year, will receive nothing. In re Stein, 94 Fed. 124, 1 Am. B. R. 662. The proof of a claim within the year and before the estato is closed but subsequent to the payment of a dividend does n^t di turb that dividend nor affect the right? of the creditors who have received it, but such claims will be entitled to " dividends equal BANKRUPTCY. 35 in amount to those already received by the other creditors, if the estate equals so much, before such other creditors are paid any further dividends." Goc. Creditors who delay presenting claims until after the payment of dividends therefore take their chances of securing a shars in such dividends, but since the amendment of 1903 requiring that " the first dividend shall not include more than fifty per centum of the money of the Estate in excess of the amount necessary to ]>;iv the debts which have priority and such claims as probably Avill be allowed" the cases will be rare in which they will not receive the same dividends as creditors proving their claims before the first dividend. 65b. XII. COMPOSITIONS. 26. In what ways may a bankrupt secure the dismissal of the proceedings and the revesting of the title to his property in his own name? 1. If he can secure the signature of all his creditors _to a state- ment that their claims are satisfied he may then petition for a dismissal of the proceedings upon payment of the expense to date. Notice of such a petition must be given to all creditors unless it is waived by them. 59g. 2. He may at any time after he has been examined make a com- position offer to his creditors. 12a. If accepted in writing by a majority in number and amount of creditors whose claims have been allowed he may file an application for its confirmation upon depositing in court the consideiation and a sum sufficient to pay the cost of the proceedings and the debts which have priority. The composition will be comfirmed if (1) it is for the best interests of creditors, (2) the bankrupt has not been guilty of any of the acts or failed to perform any of the duties which would be a bar to his discharge, and (3) the offer aand its acceptance are in good faith. 12b, d. The confirmation of a composition has the effect of revesting in the bankrupt the title to his property, 70f, 21g, and of dis- charging him from his debts other than those agreed to be paid by the terms of the composition offer and those not affected by a discharge. 14c. XIII. DISCHARGE. a. Grounds of Opposition. 27. For what reasons may a discharge l)e refused the bankrupt? The bankrupt is entitled to a discharge unless he has (1) com- mitted an offense punishable by imprisonment as provided in the r.r-t. which may consist in his having (a) concealed from his trustee any property belonging to his estate or (b) made a false oath or account in the bankruptcy proceeding. 36 QUESTIONS AND ANSWERS. (2) With intent to conceal his financial condition, destroyed, concealed or failed to keep books of account or records from which such condition might be ascertained. (3) Obtained property on credit from any person upon a mate- rially false statement in writing made to such person for the pur- pose of obtaining such property on credit. (4) At any time subsequent to the first day of the four months immediately preceding the filing of the petition, transferred, re- moved, destroyed or concealed any of his property with intent to hinder, delay or defraud his creditors. (5) In voluntary proceedings been granted a discharge in bank- ruptcy within six years. (6) In the course of proceedings in bankruptcy refused to obey any lawful order of or to answer any material question approved by" the court. 14b, 29. 28. A. testifies falsely upon his examination at the first meeting of creditors. Can this be made the ground for an objection to his discharge? Yes. Section 7 provides that no testimony given by the bank- rupt upon such examination shall be offered in evidence against him in any criminal proceeding and for that reason some cases have held that such testimony could not be used against him upon his application for a discharge. In re Marx, 4 Am. B. E. 521, 102 Fed. 676. It is now settled, however, that the proceeding upon the appli- cation for a discharge is not a criminal proceeding and that a dis- charge may be denied the bankrupt for false testimony upon his examination. In re Dow, 5 Am. B. R. 400, 105 Fed. 889; In re Gaylord, 7 Am. B. R. 1, 112 Fed. 668 (C. C. A. 2d Cir.). 29. A. is adjudged a bankrupt but fails to file a petition for discharge within one year. May he file a second petition and re- ceive in that proceeding a discharge from debts scheduled in the first proceeding? No. The record of his failure to make the application in that proceeding was in effect a judgment by default and renders the issue as conclusively res adjudicata as a judgment upon a trial. In re Bramlett, 161 Fed. 588, 20 Am.-B. R. 402; Kuntz v. Young, 12 Am. B. R, 505, 131 Fed. 719 (C. C. A. 8th Cir). b. Debts Affected by a Discharge. 30. Is a bankrupt discharged from an unliquidated claim for damages for tort? Xo. because such claim is not a provable debt (see Question 9) and the bankrupt can be discharged only from provable debt?. 17. If. however, the claim has been reduced to judgment prior to the adjudication it becomes provable. 63a (1). It is then BANKRUPTCY. 37 dischargeable unless it belongs in the class of debts not affected by a discharge, that is, is either a liability for obtaining property by false pretenses or false representations, or for a wilful and malicious injury to person or property, or for alimony, or for maintenance or support of wife or child, or for seduction or crim- inal conversation, or was created by the fraud, embezzlement, mis- appropriation, or defalcation of the bankrupt while acting as an officer or in any fiduciary capacity. 17. Matter of N. Y. Tunnel Co., 20 Am. B. H. 25 (C. C. A. 2d Cir.). 31. Does a bankrupt get a discharge from a debt which he has failed to place in his schedule? Xo, unless the creditor has had actual knowledge of the pro- ceedings. 17 (3). The bankrupt may, however, amend his schedules at any time. Gen. Ord. XL 32. A. after being adjudged a bankrupt promises a creditor that he will see that he is paid. He subsequently gets a discharge. Can the creditor collect the debt? Yes, because the discharge does not extinguish the debt; the moral obligation remains and is a sufficient consideration for the new promise. Dusenberry v. Hoyl:, 53 N". Y. 521 ; Mutual Re- serve, &c. v. Beatty, 2 .m. B. R. 244, 93 Fed. 747; In re Mem- man, 44 Conn. 587. 33. A., as agent for B., converts to his own use the proceeds of the sale of B's property. Can lie obtain a discharge in bankruptcy from A.'s claim against him? Yes. The claim is a provable one (see Question 9, c) and is not covered by the enumeration in section 17 of debts not affected by a discharge which include those created by " fraud, embezzle- ment, misappropriation or defalcation while acting as an officer or in a fiduciary capacity " since this only applies to technical trusts and acts of an official character or in a fiduciary opacity. Crawford v. Burke, 195 IT. S. 176, 12 Am. D. R. 659 ; Hennequin v. Clewes, 111 U. S. 676; Palmer v. Hussey, 119 U. S. 96; In re Hale, 161 Fed. 387. XIV. SUMMARY PROCEEDINGS. 34. A. is adjudged a bankrupt. His trustee discovers prop- erty of A.'s in the possession of B., who refuses to surrender it. Bi/ what process may the trustee obtain possession of the property? If B. is an "adverse claimant." that is one claiming title to the propertv in his own right and not merely the agent of the bank- rupt, the trustee must brine a plenary suit to recover the prop- erty. Bardes v. Bank, 178 U. S. 524, 4 Am. B. R. 163. 38 QUESTIONS AXD ANSWERS. Prior to the amendment of 1903 such suit under the decision in Bardes v. Bank could not be brought in the U. S. District Court except with the consent of the defendant but must be brought in the court where the bankrupt might have brought it if bankruptcy proceedings had not been instituted. By the amendment of 1903 such suit may now be brought in the District Court. 23b, 60b, 67e. If, however, B, is not an " adverse claimant " but is merely holding the property for the bankrupt he may be cited in in the bankruptcy proceedings and summarily ordered to surrender pos- session to the trustee. White v. Schloerb, 178 U. S. 542, 4 Am. B. R. 178; Bryan v. Bernheimer, 181 U. S. 188, 5 Am. B. R. 623; Mueller v. Nugent, 184 U. S. 1, 7 Am. B. R. 224. In Bryan v. Bernheimer, upon a sale of goods by a general as- signee after the filing of a petition in bankruptcy, the vendee who bought with knowledge of 'the petition, was held amenable to sum- mary process, as was the bankrupt's son to whom he had delivered a large amount of property just prior to the bankruptcy in Mueller v. Nugent. The Bankruptcy Court has the power in any particular case to ascertain whether the claim asserted is an adverse one existing at the time the petition was filed, and according to the conclusion reached the court will retain jurisdiction or decline to adjudicate the merits in the summary proceeding. Louisville Trust Co. v. Comingor, 184 U. S. 18, 7 Am. B. R. 421; Matter of Friedman, 20 Am. B. R. 37 (C. C. A. 2d Cir.). XV. CONTEMPT PROCEEDINGS. 35. Bankrupt has money or property which he refuses to de- liver to the trustee. How may he be compelled to do so? It is the bankrupt's duty to obey all lawful orders of the court. 41. If the court is satisfied that he has in his possession prop- erty belonging to his estate, it may order him to surrender it and upon his failure to do so may commit him for contempt. Schweer v. Brown, 130 Fed. 328. 12 Am. B. R. 178 (C. C. A. 8th Cir.). Before he can be punished for contempt, however, he must have notice and an opportunity to show cause why he should not com- ply with the order. In re Cole, 163 Fed. 180 (C. C. A. 1st Cir.) ; In re Rosser, 101 Fed. 562, 4 Am. B. R. 153 (C. C. A. 8th Cir.). Such commitment does not violate a constitutional prohibition against imprisonment for debt. In re Anderson, 4 Am. B. R. 640, 103 Fed. 854. XVI. APPELLATE PROCEEDINGS. 36. How may decisions of the bankruptcy courts be reviewed? Anv ruling or order of a referee may he taken to the District Court by a petition for review filed within a reasonable time. 39 (5). Gen. Ord. XXVII. BANKRUPTCY. 39 There are three methods of reviewing a decision of the District Court sitting in Bankruptcy. 1. A final judgment in controversies arising in bankruptcy pro- ceedings may be reviewed on writ of error or appeal by the Circuit Court of Appeals as in other cases. 24a. Such appeal may be taken within six months. 2. Any order or decree final or interlocutory in a proceeding in bankruptcy may be superintended and revised in matters of law only on petition for review by the Circuit Court of Appeals. 24b. Xo time is fixed within which such petition must be filed. It must be made within a reasonable time. By rule in the Second Circuit such petition must be filed within ten days. 3. A judgment in bankruptcy proceedings may be reviewed on appeal as in equity to the Circuit Court of Appeals in the follow- ing classes of cases only: Judgments adjudging or refusing to adjudge the defendant a bankrupt; granting or denying a dis- charge; allowing or rejecting a claim of $500 or over. 25a. Such appeal must be taken within ten days. A sharp distinction has been drawn by the courts between " con- troversies arising in bankruptcy proceedings " which may be re- viewed by writ of error or appeal, and rulings in bankruptcy pro- ceedings which may be reviewed as to questions of law upon a petition to revise, the latter being confined to questions arising in the administration of estates in bankruptcy proper, the former to controversies arising outside of the bankruptcy proceedings proper. In re Mueller, 135 Fed. 711, 14 Am. B. K. 256 (C. C. A. 6th Cir.). If in doubt as to whether a case is " a controversy arising in bankruptcy " or a proceeding in bankruptcy proper the safe prac- tice is to take an appeal and also file a petition to revise. In re Worcester County, 102 Fed. 808, 4 Am. B. E. 496 (C. C. A. 1st Cir.). QUESTIONS AND ANSWERS. BILLS AND XOTES.* I. IN GENERAL. 1. What is " negotiable paper/' and how does it differ from ordinary choses in action? The term " negotiable " is applied to a contract, the right of ac- tion on which is transferable by indorsement or delivery, so that the one taking it can sue in his own name. Bouv. Law Diet. The prime distinction between such contracts and ordinary contracts- is this: When an ordinary chose in action is assigned, the assignee stands exactly in the shoes of his assignor and is subject to any defenses which were available to the other contracting party against the assignor; when, on the other hand, a negotiable contract is transferred under certain conditions (explained infra), the trans- feree can recover in spite of the existence of such defenses. Bishop on Contracts, 1179, 1180, 1189; 1 Parsons on Contracts, 227; 1 Daniel, Neg. Inst., 1. 2. What are the formal requisites of a bill of exchange or promissory note? They are as follows: (a) A promise to pay, if a note, or an order on a third person, if a bill. If in the form of a request or a mere authority, it is not a bill. King v. Ellor, 1 Leach, C. L. 323; Little v. Slackford, M. & M. 171. So an " I. 0. U," or " Due John Smith, $10.00,'' is not a negotiable instrument, but only evidence of an indebtedness. Currier v. Lockwood, 40 Conn. 349; Smith v. Allen, 5 Day (Conn.), 337. (b) The order or promise must be absolute and unconditional. Thus, " Pay X. $10.00 out of my growing subsistence," is bad as a bill, because dependent on a certain fund. Josselyn v. Lacier, 10 Mod. Rep. 294, 316. " I promise to pay X., or order, $100.00; and when that sum is paid to X., this note is to be given up to me." This condition restricts the negotiability and it is not a note. Hubbard v. Mosely, 11 Gray, 170. (c) It must be payable in money, i. e., in legal tender, and not in merchandise or the like. Foreign money is a commodity. See Chrysler v. Renois, 43 N. Y. 209; Thompson v. Sloan, 23 Wend. 71. * In 1897 the Legisl -tunes of New York, Connecticut, Colorado, Virginia and Fl orida and in 1898 those of Maryland and Massachusetts adopted a uniform code of laws < n bills and notes which was prepared and recommended by the Conference of Commissioners < n Uniformity of Laws. Mr. John J. Crawford, of New York, who made the draft of the act. has prepared an edition of it, with annotations, which is referred to in the succeed- ing pages and is of value not only because the Act adopted embodies the rules thought to be supported by the most weighty authorities, but because the annotations contain those authorities and the principal ones which areronfm. This Act should of course be consulted by students in the States which have adopted it, whether attention is called in these page's to the changes made thereby, or not. BILLS AND NOTES. il (d) It must not contain an independent agreement; e. g., to pay money and deliver up horses. Martin v. Chauntry, 2 Str. 1271. But if there is a memorandum of collateral security (Wise v. Charlton, 4 Ad. & EL 786), or a provision to facilitate its col- lection, such as an agreement to pay attorney's fees if suit is neces- sary, this probably does not destroy its negotiability. Sperry v. Horr, 32 Iowa, 184. The case of Overton v. Tyler, 3 Barr. (Penn.), 346, represents the courts holding that such a promise destroys ne- gotiability, but the decisions are in much confusion. (e) It must be for a definite sum, and the amount should appear on its face. That is, a promise " to pay $65.00, and all other sums which may be due," is not a note. Smith v. Nightingale, 2 Starkie, 375; Riker v. Sprague Mfg. Co., 14 R. I. 402. And compare the preceding paragraph. (f) It must be certain as to time of payment. As a convenient commercial representative of money, a note should by its own terms show a specific date for its maturity, or an option in the holder by which he can at any time fix it. Otherwise, in order, to charge indorsers, the holder would have to be constantly on the watch for the happening of some contingency. Alexander v. Thomas, 16 Q. B. 333; Brooks v. Hargreaves, 21 Mich. 254. It is probably law, however, that if the event is one which must neces- sarily occur, the uncertainty in time does not destroy the negotiability of the instrument. Colehan v. Cooke, Willes, 393 (ten days after the death of my father); Bristol v. Warner, 19 Conn. 7 (on demand, after my decease); Riker v. Sprague Mfg. Co., supra. (g) There must be certainty of parties. A bill must be signed by a drawer, and a note by a maker (McCall v. Taylor, 34 L. J. Rep. 365); and there must be a payee sufficiently described to be ascertained. Thus, a note to " A. B., trustee," or to " the estate of Y.," is good. It means the person who is trustee, or executor, at maturity. Shaw v. Smith, 150 Mass. 166. So, a bill must name a drawee. Peto v. Reynolds, 9 Ex. 410. (h) A bill or note becomes operative only upon delivery. What amounts to delivery is a question of intention. Chamberlain v. Hopps, 8 Vt. 94; Lawrence v. Bassett, 5 Allen, 140. See, on this whole subject, 2 Ames, Cas. on Bills and Xotes, 826, 834; Crawford, Neg. Inst. Act, pp. 8-16- 3. Define accommodation paper. It is a device to supply credit. X. wishes to raise money and applies to Y. for the use of his name to support X.'s credit. For this purpose, Y. signs a note payable to X.'s order, or indorses one already in existence or draws or accepts a bill, generally without consideration. The importance of the subject is this: that a subse^ quent holder, even if he knows that there was no actual business transaction between X. and Y., can recover against Y. as maker or 42 QUESTIONS AND ANSWERS. acceptor or indorser, as he may appear on the instrument. Ob- viously, if such knowledge by a third party prevented his recovering from Y., the practice would lose much of its value to the accommo- dated party. The Grocers' Bank of X T ew York v. Penneld, 69 X. Y. 502; Duncan v. Gilbert, 29 K J. Law, 521. What remedy over would be available to Y. as against X., would of course depend on the contract between them. 4. What is the legal status of a check? of a certificate of deposit? A check is simply a bill of exchange, payable on demand, and drawn on a bank or banker. Crawford, Xeg. Inst. Law, 112; Bowen v. Newell, 4 Seld. 190. A certificate of deposit is a promissory note. Bank v. Merrill, 2 Hill, 295; Bellows Falls Bank v. Rutland Bank, 40 Yt. 377. 5. Is a consideration necessary in a bill or note? and if so, between what parties can the want or failure thereof be shown as a defense? A valuable consideration is necessary between the immediate parties to a bill or note, as much as in a simple contract, and as between them, the want or failure of it may, there- fore, always be shoAvn. Thus, one Avho signs his note and delivers it as a gift cannot be held liable upon it by the donee, even though there is a strong moral obligation or a valid reason of natural love and affection which induced him to give it. Hill v. Buckminster, 5 Pick. 391; Fink v. Cox, 18 Johns. 148. The other rules govern- ing the consideration of simple contracts apply equally to commer- cial paper. For example, a note given for a debt barred by the Statute of Limitations creates a binding obligation; Giddings v. Giddings, 51 Vt 227; s. c., 31 Am. Eep. 682; and again, if a note be founded on an illegal consideration it is unenforceable and the parties will be left where they are. Scollans v. Flynn, 120 Mass. 271. " Immediate parties " are, maker and payee, drawer and payee, acceptor and drawer, and an indorsee and his immediate indorser. 1 Daniel, Neg. Inst., 174. As between " remote parties," e. g., between indorsee and maker or payee and acceptor, the want or failure of consideration in the original transaction cannot be shown unless every transfer of the instrument has been either without value, or with knowledge of the defect in question. In other words, any one transfer before ma- turity, where value passed, and the transferee had no notice of the defect, protects all subsequent holders, even if they know all the facts as to consideration. Hascall v. Whitmore, 19 Me. 102; s. c., 36 Am. Dec. 738; Estabrook v. Boyle, 1 Allen, 412. Accommodation paper stands on a footing peculiar to itself. See Ques. 3, supra. BILLS AND XOTES. 43 6. Suppose X, makes his note, "Two years after date I prom- ise to pay John Smith ten dollars." Is this a promissory note? Such an instrument is known as a " non-negotiable note," though that is, perhaps, a contradiction in terms. For while it is held to be a species of commercial paper, though without words of nego- tiability (Arnold v. Sprague, 34 Vt. 402; Averett v. Booker, 15 Grr the drawer and indorsers are discharged What is a reasonable time depends on the facts of each case 1 Daniel, Neg. Inst., 454, 465, 466. By the Negotiable Instruments Act, bills payable after sight "or in any other case where presentment for acceptance is necessary in order to fix the maturity of the instrument t: must be presented for acceptance. See Crawford, Ann. Neg. Inst. Act, p. 97. BILLS AND NOTES. 57 tee, and that the guarantor is entitled to require demand upon the maker " within a reasonable time and notice of nonpayment within a reasonable time." 2 Daniel, Neg. Inst, 1787; Oxford Bank v. Haynes, 8 Pick. 423; s. c., 19' Am. Dec. 334 (a strong case); Douglas v-. Reynolds, 7 Pet. 126. 34. What is a sufficient presentment? 1. It must be by the holder or one duly authorized by him. Sussex Bank v. Baldwin, 2 Harr. (N. J.) 487; (compare Question 30, supra). 2. To the drawee 'or acceptor of a bill or the maker 'of a note or an authorized agent, such as the wife of the obligor if present- ment is at his residence, or a clerk if at his place of business. .1 Daniel, Neg. Inst., 589, 590- Stewart v. Eden, 2 Cai. (N. Y.^i 121; s. c., 2 Am. Dec. 222. 3. On the exact day of maturity, unless some legal excuse be forthcoming. Griffin v. Goff, 12 Johns. 423; Mechanics' Bank v. Bank, 6 Met. 13. See Question 36, infra, for matters of excuse. 4. At a proper place. If no place is mentioned, presentment at either the ho*me or the place of business of the maker or acceptor is sufficient. 1 Daniel, Neg. Inst., 635; Cox v. Bank, 100 U. S. 713. If a particular place is named, presentment must be made there. 1 Daniel, supra, and 644; Parker v. Stroud, 98 N. Y. 379. 5. At a reasonable hour; i. e., during customary banking hours if presentment is made at a bank, or if at a house, between the usual hours of rising and retiring. Salt etc., Bank v. Burton, 58 N. Y. 430; Dana v. Sawyer, 22 Me. 244; s. c., 39 Am. Dec. 574 (11:45 p. m. too late at house). In the case of Sussex Bank v. Baldwin, supra, there is a dis- cussion of several of these requisites, and on the whole topic, see 1 Daniel, Neg. Inst., chap. XX, especially 571, 572, 575, 590a, 601, 602, 604, 635, 636. 35. X. holds two notes, one payable in. three months from January first, the other payable on demand. Both are indorsed. On what days should he present these notes for payment in order to Charge the indorsers ? The common-law rule as to time notes and bills was that three days of grace should be added to the time. named in the instru- ment. That is, the day of maturity of the first note would be April 4th. 1 Daniel, Neg. Inst., S 614: Bank v. Triplett, 1 Pet. 25.* The question of the date on which it is necessary to present de- mand paper in order to charge indorsers is far from settled, and * Days of grace are abolished by the Negotiable Instruments Act, and also by statute in severnl States which have not yet edopted that Code. See Crawford, Ann. Negi Inst., p. 67. 58 QUESTIONS AND ANSWERS. a reference to all the shades of opinion would be beyond the scope of this book. Distinctions are made between demand bills, notes and checks, between simple demand notes and demand notes pay- able " with interest," and what not. See the discussion and cases cited in 1 Daniel, Neg. Inst., 604-610. The Negotiable Instruments Act provides that presentment must be made within a reasonable time. Crawford, Ann. Neg. Inst. Act, p. 61. 36. Is delay in making presentment ever excusable? Yes. The liability of the drawer or indorser is not made to 'depend absolutely upon presentment on the day of maturity, but only upon due diligence of the holder in making presentment. Usually this means presentment on the exact day of maturity, but an allegation of due demand is supported by proof that the holder, being prevented by inevitable accident from presenting the in- strument for payment on the day of maturity, made presentment within a reasonable time thereafter. Instances are, mistake in the post-office (Windham Bank v. Norton, 22 Corm. 213); and maturity falling between the death of the holder and appointment of a personal representative. White v. Stoddard, il Gray, 258. And see cases cited in vol. 4, Am. & Eng. Ency. of Law (2d ed.), 365. b. Protest. 37. What does "protest" mean? Protest, technically speaking, is the second formality which must be taken by the holder of a certain kind of negotiable paper in order to hold the drawer and indorsers. The proper method is to have a notary public make presentment of the bill to the drawee, and then, if payment is refused (or acceptance, if the presentment be for that purpose), set down under his official hand the facts of the presentment, reciting in full and exact detail a fair descrip- tion of the bill, the reason for dishonor, the fact of protest, and of compliance with all the requisites qf presentment explained in the preceding section. The instrument thus made is the " pro- test." Each necessary fact should be distinctly set forth, for the document is only evidence of what it states on its face. At common law, protest can only be used for foreign bills of exchange, but for that class of commercial paper it is vital; that is, " it constitutes an independent solemnity essential to fix the liability of a drawer or indorser of a foreign bill." 2 Ames, Bills and Notes, 114, and cases cited. The custom of merchants took this form because this cer- tificate of a public officer would provide the most satisfactory evi- dence to the drawer, who, living abroad, could not easily make proper inquiry into the facts of dishonor. 2 Daniel, Neg. Inst., 926, 927, 929, 950; Dennistoun v. Stewart, 17 How. 606. BILLS AND NOTES. 59 By statute, a similar proceeding may be taken to present notes or inland bills, but such presentment is not generally made necess- ary. 2 Daniel, N&g. Inst., 926; Bryant v. Lord, 19 Minn. 396. And see the Statutes of the various States. 38. What is the use. made of the protest? The instrument itself is prima facie evidence of all the facts which it recites, so far as they come within the scope of the notary's duty; i. e., to make presentment and protest. When the protest is of a foreign bill, the notarial act must be produced. 2 Daniel, Neg. Inst., 959; Townsley v. Rumrall, 2 Pet. 170. When, how- ever, it is of a note or an inland bill, the instrument is at common law not even admissible as evidence of the facts it recites. By the statutes which permit protest of such paper, the document gains admission, but does not become indispensable. 2 Jones on Ev., .& 557; Bailey v. Dozier, 6 How. 23, 28. c. Notice of Dishonor. 39. The holder of a bill or note on which there are indorsers, presents it to the drawee or maker at maturity, and the latter re- fuses to pay it. What further shall be done to hold the indorsers liable? Immediate notice must be sent to them (or to the one the holder means to make liable for payment), and this notice, though no invariable form is required, should include these requisites: (1) A copy or such a description of the instrument that the indorser will not be misled; Mills v. Bank, 11 Wheat. 431; Gates v. Beecher, 60 N". Y. 518; (2) An intimation (not necessarily an express state- ment) that the bill or note was dishonored; Burgess v. Vreeland, 24 N. J. Law, 71; Youngs v. Lee, 12 K Y. 551; and cf. 2 Daniel, Neg. Inst., 983; (3) The notice should be sent by the holder, or his agent for collection, or at least by some party liable on the bill or note. 2 Daniel, supra, 987-994; Woodthorpe v. Lawes, 2 M. -& W. 109; Brailsford v. Williams, 15 Md. 150; s. c., 74 Am. Dec. 559. It is not necessary, though formerly so laid down, to state in tbe notice that tbe party to whom it is sent is looked to for pay- ment. Burgess v. Vreeland, supra. The importance of sending a correct notice of dishonor is that that ceremony is a condition precedent to the liability of the drawer or indorser. It is part of his contract that he shall not be liable unless such a notice is sent; and knowledge on his part, through other sources, of the fact of dishonor is of no consequence. 2 Daniel, supra. 970; Dwight v. Scovil, 1 Conn. 654; Juniata Bank v. Hale, 16 S. & R. 157; s. c., 16 Am. Dec. 558. 60 QUESTIONS AND ANSWERS. 40. When and how must the notice be sent? The rule is that notice shall be given within a reasonable time after dishonor; but the definition of a reasonable time is so exact as to leave little room for variation. By the weight of authority notice of dishonor, when the holder and the indorser to be notified live in different towns, must be posted so as to leave town not later than the first mail of the day following the day of dishonor, pro- vided that mail does not leave until a convenient time after the opening of business hours to send off the message. If it doe* leave at an inconveniently early hour, then by the next mail there- after. Burgess v. Yreeland, 24 N. J. Law, 71 ; s. c., 59 Am. Rep. 408; Smith v. Poillon, 87 X. Y. 590, 597; 2 Daniel, Xeg. Inst, 1039-1041. When the parties live in the same town, the limit of time is fixed at the end of proper hours for doing business on the day after the dishonor. Until recently, under these circumstances, the proper method of serving notice has been by personal delivery, but the postal service may be employed in cities where house-to-house de- livery is made, and statutes of many States provide for its use in all towns. 2 Daniel, Xeg. Inst., 1003, 1008; 4 Am. & Eng. Ency. of Law, 426, and cases cited; Ransom v. Mack, 2 Hill (X. Y.), 580; s. c., 38 Am. Dec. 602, and note; Eagle Bank v. Hathaway, 5 Met. 214. If the accepted rules as laid down above are followed, it is a good notice to the indorser whether actually received by him or not; and if, on the other hand, some other method of transmission be adopted and the notice is actually received within the proper time, the indorser is equally bound; he cannot complain of the means used. 2 Daniel, supra, 1003; Cabot Bank v. Warner, 10 Allen, 524. The Negotiable Instruments Act provides for sending notice either by delivery or by post, at the option of the sender, and limits the time in accordance with the rules above set forth. See Crawford. Xeg. Inst. Act, pp. 72, 75, 76. CARRIERS. 61 CARRIERS. I. CARRIAGE OF GOODS. a. In General. 1. What is a common carrier* ? He is one who undertakes for hire to carry from place to place the-' goods of anyone who chooses to employ him. Hutchinson on Carriers,! 47. The undertaking is limited in its scope by the pub- lic profession he makes of the kind and quantity of goods he will carry. This, each carrier determines for himself, when he takes up the business, but within that line he must act for every one alike, and is liable to an action for refusal. Messenger v. R. R. Co., 37 N. J. Law, 531, 534; Tunnel v. Pettijohn, 2 Harr. (Del.) 48; Hutchin- son on Carriers, 77, 78. See, also, on the public nature of the calling, 1 Chit. PI. 136; Nevin v. P. P. C. Co., 106 111. 222. 2. Is it necessary that a carrier should have possession of the property he takes charge of? or, to illustrate, is a tugboat .a com- mon carrier of its tow? The decisions are not uniform. On the one hand, the bailment, which is generally an essential in the carriage of goods, is absent in the case suggested; the tug merely furnishes motive power. See Wells v. Xav. Co., 2 N. Y. 204; Trans. Line v. Hope, 95 U. S. 297, which hold that a towing line is not a common carrier. But on the other hand, there is certainly a transportation and in the usual case, where the master of the tug has full control of the location and management of his tow, there is reason to con- sider the bailment sufficiently complete and the tugboat a common carrier. Bussey v. Trans. Co., 24 La. Ann. 165. And see Ashmore, v. Steam, etc., Co., 4 Dutch. 180, per Van Dyke, J. 3. An express company which sent the goods of its patrons from place to place by means of railroad trains, steamers and other vehicles, set up the fact that it did not own or control the means of conveyance to show that it was not a common carrier. Is this a valid argument? No, it is of no importance, ^he question is, what is the service they offer to the public. The means they choose to adopt do not affect the question. Buckland v. Adams Exp. Co., 97 Mass. 124. '"Carrier" in this section is used throughout as meaning common carrier, t References are to the second edition of Hutchinson on Carriers (I891,t. 62 QUESTIONS AND ANSWERS. 4. Is a sleeping-car company a common carrier? Clearly not of the passengers, because its undertaking is only to furnish sleeping accommodations, not to transport people. And not of the goods of its patrons, because there is no bailment. The rule is uniform. Lewis v. Car Co., 143 Mass. 267; Woodruff Co. v. Diehl, 84 Ind. 474. b. Liability for Loss. 1. IN GENERAL. 5. What is the general rule as to the carrier's liability for goods lost? That he is liable absolutely; that is, that the carrier is an in- surer of the safety of the goods. The reason usually assigned for this harsh doctrine is the impossibility of the owner's watching the property and the consequent danger of collusion between the carrier and thieves. The two historic exceptions are (1) the act of God (Eliot v. St. Louis, etc., By. Co., 76 Mo. 518); and (2) the public enemy (Hutchinson on Carriers, 170 a, 211); but the numerous modern exceptions show the tendency to conform the old law to present conditions. 2. THE EXCEPTIONS TO THE RULE. 6. Which, if either, of the following cases would be included under the excuse known as " Act of God." (a) A vessel was proceeding into harbor in a moderately heavy snow storm. The master was misled by the storm and by the omission of some third person as to the harbor lights, and the cargo was damaged by the ship's grounding, (b) A ship was passing through a bridge when a sudden gust of wind drove her against one of the piers and sunk her. The question is, " Was a human act any part of the proxi- jnate cause? " In (a) the storm was an act of nature, and hence, strictly speaking, an act of God, but it furnishes no defense to the carrier, because a human agency (though that of someone unconnected with the carrier) concurred in causing the loss. Mc- Arthur v. Sears, 21 Wend. 190. In (b) the act of God, i. e. the unusually strong gust, was the sole cause. Amies v. Stevens. 1 Strange, 128. The carrier was, therefore, excused in (b), and not excused in (a). 7. Inherent nature of the good 1 ; curried. The plaintiff shipped hogs by defendant's line. When the train was stopped for any length of time the animals crowded to the doors for air, accord- ing to their natural tendency, and many were thereby smothered. Is the defendant liable? CAKEIEHS. 63 No. The rule of absolute liability does not extend to losses caused by any " inherent vice " of the goods carried, for clearly the loss from such causes is not traceable to the carrier (Kinnick v. Chicago, etc., Ry. Co., 69 Iowa 665); but a duty remains, in this case and all other exceptions to the insurer's liability, to take ordinary care. Kin- nick v. R. R. Co., supra; Steamboat Lynx v. King, 12 Mo. 272.. 8. Act of shipper, (a) The shipper of a carriage insisted on lashing it to the car himself. The carriage was blown off en route. (-~b) The shipper packed his goods improperly, and damage ensued, partly before the improper packing became evi- dent to the carrier and partly afterwards, (c) The shipper sent a letter by a common carrier of letters, containing a valuable article of a kind not usually so sent, which he dfd not mention. Which must bear the loss in these cases ? (a) The shipper, having assumed to attend to the fastenings him- self, must bear the loss. His own act is part of the legal cause. Miltimore v. Chicago, etc., Ry. Co., 37 Wis. 190. (b) Such a case modifies the doctrine just stated. The carrier is liable for that part of the loss occurring after the improper packing is apparent. Even then, moreover, he is not bound to his extraordinary liability, but only to use " ordinary care " to pre- vent further damage from the defective packing. Union Exp. Co. v. Graham, 26 Ohio St. 595; Shriver v. R. R. Co., 24 Minn. 506. (c) The shipper cannot recover for, although the general rule is that the shipper need not volunteer information of the contents of a package (Phillips v. Earle, 8 Pick. 182), still it is a fraud to send goods so packed as to seem to be what they are not. Hayes v. Wells, Fargo & Co., 23 Cal. 185; R, R. Co. v. Shea, 66 111. 471. 9. Is a carrier excused for nondelivery caused by a seizure of the goods under legal process? Yes. The policy of the law is strongly against any resistance to an officer, and the carrier is not to be forced into making such resistance. If the writ is fair on its face, he is justified in hand- ing over the property (Stiles v. Davis, 1 Black 101); and this is true even if the attachment should be under a statute proving later to be unconstitutional. McAllister v. R. R. Co., 74 Mo. 351. Kiff v. R. R, Co., 117 Mass, 591, contra. The rule is qualified by the rea- sonable requirement that the owner shall be notified. Bliven v. R. R. Co., 36 N. Y. 403. Analogous to the case of attachment is that of a surrender of goods on demand of the true owner, a course in which the carrier is clearly justified. Bates v. Stanton, 1 Duer, 79. 10. The exercise of the right of stoppage in transitu forms another excuse to the carrier for nondelivery. Define that right. 64 QUESTIONS AND ANSWERS. A vendor who discovers after forwarding goods that the con- signee is bankrupt, has the right to stop the goods at any time during the " transitus," i. e., before delivery to the consignee or his agent. The carrier is not only excused for not delivering after such notification from the consignor, but a delivery would be a conversion. Reynolds v. R. R. Co., 43 N. H. 580; Newhall v. Vargas, 13 Me. 93. 3. LIABILITY FOR DELAY OR DEVIATION. 11. What is the rule as to delay? The question is simply whether the time occupied in the transit is, under the circumstances, reasonable. Scovill v. Griffith, 12 N. Y. 509; Dawson v. R. R. Co., 79 Mo. 296. A strike, for instance, would excuse delay, especially if violence were used by the strikers, but in that case as in every other, reasonableness under the circum- stances, including the question of yielding to the strikers' de- mands, is the final test. Geismer v. L. I., etc., R. R. Co., 102 N. Y. 563; R. R. Co. v. Hazen, 84 111. 36. 12. Deviation. A carrier left his route to call at his home, about three miles from the main road. A bridge on the by-road gave way and the goods were injured. Is he liable? Yes; by a general principle of law, that if one interferes or meddles wifh another's property, he does so at his peril. Powers v. Davenport, 7 Blatchf. 497; Davis v. Garrett, 6 Bing. 716. If, however, an emergency, such as a strike, arises so that the carrier must choose between a deviation from his route and long delay with possible loss, the proper course is to send the goods around by some other route, though more roundabout than the regular one. Express Co. v. Kountze Bros., 8 Wall. 342; Steiger v. Erie R. R. Co., 5 Hun, 345. 4. EXPRESS LIMITATIONS OF THE ABSOLUTE LIABILITY. 13. An express company published in a newspaper, which one X. read regularly, a notice that it would not be liable for losses of more than $50 on any package unless the value was stated when the goods were sent. X., who had never heard of the notice, sent a package worth $200. Can he recover the value ? Yes: for such notice must be brought to the shipper's actual knowledge. A carrier may make reasonable regulations and they will bind the shipper, but, generally speaking, they must be brought home to the shipper, as part of the reasonableness. Hollister v. Nowlen, 19 Wend. 234; Judson v. Western, etc., Corp., 6 Allen, 486. CARRIERS. 65 14. Can a carrier, by a contract with the shipper, relieve him' self from liability for negligence? By 'the great weight of authority in this country, he cannot. He is a public servant and must be kept strictly to his duty, on strong grounds of public policy. In some courts, also, he is considered to have an unfair advantage of position in dealing with the shipper. Davidson v. Graham, 2 Ohio St. 131; R. R. Co. v. Lockwood, 17 Wall. 357. The contrary rule has been adopted in some States. Maynard v. R. R. Co., 71 N. Y. 180. Contracts are frequent, however, by which the carrier is re- lieved from liability for loss not caused by his negligence (e. g., by pure accident), in return for which a diminished rate of freight is given. These are everywhere upheld. Davidson v. Graham, supra; R. R. Co. v. Morrison, 19 111. 336. 15. Suppose there is an agreement between the carrier and the shipper that in event of loss the value of the goods shall be taJcen to be a certain amount. Is this good? The decisions are divided, though both sides insist that the fixed valuation must be made fairly. In applying this, several courts, headed by the Supreme Court of the United States, take the state- ment of value in the bill of lading as in all cages conclusive. Hart v. Penn. R. R. Co., 112 U. S. 331; Garves v. L. S. R, R. Co., 137 Mass. 33. On the other hand, by perhaps the weight of authority, such contracts are only supported when the value stated actually approximates the true value. They consider that other- wise the objections (of public policy) which apply to contracts against liability for negligence apply to these also, especially when the stipulations of value are " ironclad," i. e. in an invariable printed form. Ry. Co. v. Wynn, 88 Tenn. 320; R. K. Co. v. Back- man, 28 Ohio St. 144. As to when stipulations in a bill of lading will bind the consignor, without regard to his knowledge of them, the weight of authority is that when the shipper takes what he knows or believes to be a con- tract and does not dissent from its terms, he is bound by those terms- Lawrence v. R. R. Co., 36 Conn. 63; Kirkland v. Dinsmore, 62 N. Y. 171. In Illinois, however, and some other jurisdictions, it must be found as a fact that the shipper gave assent. Anchor Line v. Dater, 68 III. 369; Seller v. S. S. " Pacific," 1 Ore. 409. o. Delivery by the Carrier. 1. TERMINATION OF LIABILITY AS CARRIER. 16. Where is the line to be drawn which will end the strict liability of a carrier, at actual delivery to the consignee? or at ivliat point? This depends upon what the carrier holds out to the public as his route; and that varies of course with different classes of carriers. 5 66 QUESTIONS AND AXSWEES. The route of a parcel express company clearly extends to the house or place of business of the consignee, and something equivalent to a personal delivery is necessary to end the liability of the carrier as such. The route of a carrier like a railroad company, however, ex- tends only to the freight station, and the question then arises: Does the special liability cease when the train stops, when the goods art? unloaded, or at what time ? Opinion is evenly divided between the logical view, that with such a carrier the absolute liability lasts only until the goods are placed in a position accessible to the consignee (the liability being there- after that of a warehouseman); Norway Plains Co. v. R. R. Co., 1 Gray, 263; Gashweiler v. R. R. Co., 83 Mo. 112; and the view that it lasts a " reasonable time " after the goods are unloaded. R. R. Co. v. Maris, 16 Kan. 333; Graves v. Steamboat Co., 38 Conn. 143. New York stands alone in requiring also notice to the con- signee. Faulkner v. Hart, 82 N. Y. 413. 17. A carrier whose route is from A. to B., receives a package directed to C., a point beyond his line. The package is lost after he delivers it to the carrier running from B. to C. Is he liable? In other words, can you prove a through contract with the first carrier by simply showing a receipt for a package directed as above? The great weight of authority in this country is that such a receipt is not even prima facie evidence of a through contract, but that the natural meaning of it is an undertaking to carry as far as his line goes and deliver safely to the connecting line. Nutting v. R. R. Co., 1 Gray, 502; Elmore v. R. R. Co., 23 Conn. 475. The English courts, with a small following here, are contra. Muschamp v. R. R. Co., 8 M. & W. 421; Mulligan v. R. R. Co., 36 Iowa, 181, The carrier may, of course, contract specially for the whole distance, either directly, by such a clause as "goods to be delivered lit r."; (Hansen v. R. R. Co., 73 Wis. 340); or indirectly, as by advertising a through line. e. g. " Through freight for South and West by boat and rail." Clyde v. Hubbard, 88 Perm. St. 358. 18. Suppose the first carrier finds the second unable to take the goods on account of a press of business, and they are de- stroyed by accidental fire while awaiting transfer. Who is to lose? The first carrier loses unless the delay has been go great as to justify warehousing. The reasons for holding him are that a? far as the shipper is concerned the goods are continually in transit from the time he sends them, and as for the carrier, he has not com- pletely performed his contract and must reckon upon the conse- auences of ordinary delavs. Goold v. Chapin, 20 N. Y. 259; Con- don v. R. R. Co., 55 Mich. 218. CARRIERS. 67 2. DELIVERY TO THE CONSIGNEE. 19. Suppose an express company cannot find the consignee immediately, or there is no one at the address to receive the package. When does its liability as carrier cease? Under the general rule that such a company must give reason- able accommodations to the community, its hours for delivery must be within convenient hours for doing business; and to find the con- signee, reasonable diligence must be used. Zinn v. Steamboat Co., 49 N. Y. 442. If the company observes these rules and the consignee is still not to be found, it becomes an ordinary bailee and its duty is to store, notifying the consignor. Pelton v. R. R. Co., 54 N. Y. 214; O'Rourke v. R. R. Co., 44 Iowa, 526. And see Stone v. Waitt, 31 Me. 409. 20. Does the consignor or the consignee have control of the disposal of the goods during the transit; or in other words, what assumption may the carrier safely make as to the title? In the common case, the title passes to the consignee when the goods are delivered to the carrier. Unless, therefore, there is some- thing to show the carrier that there is a restriction on its passing, he is bound to follow the orders of the consignee, and a delivery which is good as between him and the consignee furnishes' a good defense against an action by the consignor. Sweet v. Barney, 23 N. Y. 335; Armentrout v. R. R. Co., 1 Mo. App. 158. And see Cork Distilleries Co. v. R. R. Co., L. R. 7 H. L. 269; s. c., 10 Eng. Rep. 25. 21. A swindler in the town of X. assumed the name of J. Smith, and sent an order in that name to the plaintiff. There was a John Smith in the same town, a reputable dealer, and known to the plaintiff. The plaintiff sent the goods addressed to J. Smith, and the defendant carrier delivered to the swindler. Is defendant liable? No. The carrier is to deliver to the person to whom the con- signor actually sent the goods. Here, of course, the consignee really intended was the swindler, because he gave the order. The de- livery to him is therefore the only proper one. Samuel v. Cheney, 135 Mass. 278; Wernwag v. R. R. Co., 117 Penn. St. 46. Price v. ]?.. T. Co.. oO X. Y. 213: is contra, but stands almost alone. The rule as to delivery is strict. If by mistake, even after the utmost care, the goods are delivered to some other person than the one intended by the shipper, it is a misdelivery for which the car- rier must answer. Powell v. Myers, 26 Wend. 591; Am. Exp. Co. v. Stack, 29 Ind. 27. 68 QUESTIONS AND ANSWERS. d. Remedies. 1. AGAINST THE CARRIER. 22. Who is the proper plaintiff in an action against a car- rier? and what is the form of action? On these questions courts have differed. One class of cases, led by Davis v. Peck, 8 T. K, 330, and Krulder v. Ellison, 47 N. Y. 36, hold that the question turns simply on whether the title has passed to the consignee or not. Another class, led by Blanchard v. Page, 8 Gray, 281, allow the consignor to sue without regard to the title to the goods, basing the action on the so-called contractual relation raised by the duty to carry imposed by law on the carrier, and the reciprocal duty to pay a reasonable price imposed on the one offering the goods. See Hutchinson on Carriers, 728-748, and Hooper v. R. R. Co., 27 Wis. 81, 90. It is hardly necessary to add, that where either of the two parties is allowed to sue, a recovery by one frees the carrier from further liability. The form of action has become comparatively unimportant from the statutory destruction of common-law pleading, but probably its real substance is in tort, for violation of a duty imposed by law, as witness the success of suits by passengers injured on Sunday. Car- roll v. R. R. Co., 58 N. Y. 126, 134. 23. Which side has the burden of proof in a suit against a carrier ? The carrier has it, both in cases where the common-law excep- tions are the only ones relied upon to excuse a loss, and in cases where b} r special contract he is liable only for negligence. This is probably because originally all bailees were accountants; i. e., bound to give an account for the goods or make a valid excuse. Shriver v. R. R. Co., 24 Minn. 506; R. R. Co. v. Lockwood, 17 Wall. 357, 376. Another reason given is that the loss is prima facie evidence of negligence. Canfield v. R. R. Co., 93 N. Y. 532. A distinction should be observed between the cases above noticed and those where the fault charged is negligence in the care of goods after they have been damaged by an act of God. There, the plaintiff clearly has the burden of proof. Trans. Co. v. Dow- ner, 11 Wall. 129. 2. THE CARRIER'S COMPENSATION. 24. Goods are shipped on a contract to carry from Boston to Baltimore. When does the right to the freight accrue under the contract? and who is liable therefor? It accrues on the safe delivery to the consignee, because a con- tract of carriage includes such delivery. If the contract is entire, CARRIERS. 69 the goods must actually arrive, and substantially in specie, or no freight whatever is due; but if it is divisible, e. g._. one thousand bushels of wheat at so much per bushel, the freight must be paid pro rata on what arrives. Say ward v. Stevens, 69 Mass. 97; Barnes v. Marshall, 18 Ad. & El. 785; Angell on Carriers (4th ed.), 398. If freight is prepaid and the voyage is not fully performed the money must be refunded. Griggs v. Austin, 3 Pick. 20; Angell on Carriers, 399, note, and cases. It has long been settled that though the carrier can insist on prepayment (Fitch v. Newberry, 1 Doug. [Mich.] 1; s. c., 40 Am. Dec. 33), or can hold the goods by a lien for his freight, he need not do so, but may deliver them and rely on payment by the consignor. Shepard v. De Bernales, 13 East, 565; AYooster v. Tarr, 8 Allen, 270. By acceptance of the goods, the consignee or the indorsee of the bill of lading also becomes liable, the consideration on the carrier's part being the giving up of his lien. Merian v. Funck, 4 Denio, 110; Cock v. Taylor, 13 East, 399. 25. What is the extent of the carrier's lien? This may, perhaps, be best answered by first stating some charges the lien does not cover, namely: (1) Charges for demurrage. Crommelm v. E. R. Co., 4 Keyes (N. Y.), 90; R. R. Co. v. Jenkins, 103 111. 588. Refusal by the owner to pay these charges is simply a breach of contract and not a ground for holding by lien, no labor having been bestowed on the goods by reason of the delay. (2) Charges on other shipments by the same party, i. e., on a general account. Rushforth v. Hadfield, 7 East, 224. On the other hand, the lien being bestowed by law as a balance to the duty imposed on carriers to serve all comers, at all times, the law extends it to all fair charges for services by the carrier as such, and makes it paramount. It includes payments bv the last carrier of a series to former carriers for their labor, (Wells v. Thomas, 27 Mo. 17; Briggs v. R. R. Co., 6 Allen, 246; .Knight v. R. R. Co., 13 R. I. 572); supersedes even the right of stoppage in transitu, (Potts v. R. R. Co., 131 Mass. 455: R, R. Co. v. Amer. Oil Works, 126 Penn. St. 485, 494); and has been held in England available against the true owner, though the ship- ment was without his consent. York v. Greenough, 2 Ld. Raym. 866; Hutchinson on Carriers, 489, 490. As to the last case, how- ever, though seemingly it is supportable on the ground of the com- pulsory nature of the carrier's duty, the entire current of American decision is contra, on the ground that the carrier has no duty to carry goods for a thief and must investigate the title as much as anyone else dealing with the property. Fitch v. Newberry, 1 Doug. (Mich.) 1; Bassett v. Spofford, 45 N. Y. 387; Robinson v. Baker. 5 Cush. 137. And see Question 9 in the section on Personal Prop- erty. :0 QUESTIONS AND ANSWERS. 26. Suppose a proper and reasonable rate for carrying a certain amount of freight is one hundred dollars. A carrier performs the service occasionally for X. for seventy-five dollars. Is th is a ground for other shippers to complain ? Would it alter the question if a large proportion of shippers paid onJy the lower rate? A New Jersey case (Messenger v. E. E. Co., 36 N. J. Law, 407) goes so far as to hold that the lowest rate given to any one shipper is the only measure of what is a reasonable rate. But E. E. Co. v. Gage, 12 Gray, 393, going to the other extreme, stands for the ruling that so long as the higher rate is not in fact an unreason- able charge for the service rendered, the carrier may charge it to one person alone, no matter how high it is, as compared with that charged to others. The true rule lies between and seems to be this: A low rate to one or two persons is some evidence that the one paid by the other shippers is too high. And when it is found that a large pro- portion of the business, reckoned either by the number of shippers, or the volume of freight carried, is done at the lower rate, it is con- clusive evidence that the lower rate is the only reasonable one. Schofield v. E. E. Co., 43 Ohio St. 571; E, E. Co. v. The People, 67 111. 11, 22. Cf. Bagan v. Aiken, 9 Lea (Tenn.), 609: Mc- Duffee v. E. E. Co., 52 N. H. 420, 438-440; Hays v. E. E. Co., 12 Fed. Eep. 309. e. Miscellaneous Topics. 27. Explain the threefold character of the bill of lading. This document, which is a " written acknowledgment signed by the carrier, that he has received the goods therein described from the shipper, to be transported on the terms therein expressed, to the described place of destination and there delivered," is (1) a contract. As such it is subject to the rule against contradiction of its terms by parol, and to the other usual rules applying to such instruments. The Delaware, 14 Wall. 579. (2) It is a receipt, showing so many goods in such and such condition. As a receipt it is open to explanation (O'Brien v. Gilchrist, 34 Me. 554); but not as to third parties who have seen and relied on its terms. Relyea v. Mill Co., 42 Conn. 579. (3) The third function of the bill of lading is its representative one. It stands for the goods in transit, and is treated as the goods for many purposes, such as sale of them before arrival. Relyea v. Mill Co., supra; Shaw v. E. E. Co., 101 U. S. 557. 28. As to carriage at sea; state the position of the master of a vessel. The master occupies the unusual situation of representing three interests at once, those of the owner of the ship, the owner of the CAEKIEKS. 71 freight and the owner of the goods. He is a fiduciary towards all three. If a moral necessity for doing so actually exists, he can even sell the cargo, passing good title, to get money to repair the ship. Star of Hope, 9 Wall. *03, 237; The Gratitudine, 3 C. Robinson, 240, 255. And in general he must act for the benefit of all three in- terests. De Cuadra v. Swann, 16 C. B. (N. S.) 772; The Velona, 3Ware, 130; Butter v. Murray, 30 N. Y. 88. 29. In what respect is a maritime lien peculiar? Such a lien is practically an acquisition of an interest in the ship itself; and the last lien gained is, therefore, paramount. Thus, for example, money lent for repairs at an intermediate port is really invested in the ship, so that charges for salvage services rendered thereafter are properly made against the money lender (together with the other owners), i. e., against one having a "" prior " lien. Cargo ex Galam, 9 Law Times Rep. 550; Abbott on Shipping, pp. 117, 594-595. 30. What is "general average;" and when does it attach? General average amounts to this: That sometimes, when one of the three interests involved, i. e., freight, cargo or ship, has suf- fered a loss, a proportionate part of this loss is shouldered by the other interests. The three conditions necessary for such a divi- sion are well stated in Barnard v. Adams, 10 How. 270, 303. There must be (1) a danger common to the crew, the ship and the cargo, so imminent that destruction seems inevitable; (2) a voluntary sacrifice of some part of the joint concern, i. e., a shift- ing of the danger from the whole to the particular part selected for sacrifice; and (3) the attempt to avert destruction must be success- ful. See also Birkley v. Presgrave, 1 East, 220, 228; Scudder v. Bradford, 31 Mass. 13. Cf. Bradhurst v. Ins. Co., 9 Johns. 9 (a lonely decision). 31. What is salvage? " A salvor is one who, as a volunteer, assists a ship in distress." Abbott on Shipping, pp. 536, 539. If the one rendering the service is already under a duty to afford this assistance, he is not a volun- teer; a sailor or a pilot, for example, could hardly ever be so classed. Lea v. Ship Alexander, 2 Paine (U. S.), 472. Again, the assist- ance rendered must be effectual, so far as it goes. The Blackwall, 10 Wall. 1, 12. The amount granted to salvors for their help rests largely in the discretion of the court, the leading considerations governing the award being the nearness of the danger which threatened the ship, the peril incurred by the salvors, the amount of time spent, and the value of the goods saved. The Blackwall, 10 Wall., supra; The Rialto, 15 Fed. Rep. 124. 72 QUESTIONS AND ANSWERS. II. CARRIAGE OF PASSENGERS. a. "Who ore Passengers. 32. Passenger carriers are in the exercise of a public calling like carriers of goods, and subject, like them, to an action for refusal to serve anyone who wishes to employ them. Are there any exceptions? Yes. The carrier has a right, and indeed a duty, to eject from its vehicles or exclude altogether (1) persons likely to cause annoyance or danger to other passengers. This is from the obli- gation to provide for the comfort of the public. Vinton v. R. R Co., 11 Allen, 304; Putnam v. Street Ry. Co., 55 N. Y. 108, The carrier may refuse (2) persons not really wishing to go from place to place. The duty to serve is only to bona fide travelers. A person, for instance, who goes on board a conveyance to ply his trade does not go there in order to reach any particular place. The D. R. Martin, 11 Blatchf. 233. (3) Persons intending some illegal act on the journey, such as gambling. Thurston v. R. R, Co., 4 Dill. 321. (4) Persons securing transportation by fraud, e. g., either by collusion with some employee or by concealment. Way v. R. R. Co., 64 Iowa, 48; R. R, Co. v. Brooks, 81 111. 245. 33. A railroad company carries some persons without ex- pecting or demanding compensation, such as its workmen on a gravel train or people riding on free passes. What relation does it bear to them? Neither are passengers, legally speaking. The workmen have a license to ride, but if they are injured, even by the engineer's- negligence, the company is not liable. The relation is master and servant, and the servant takes the risks of the employment. Gilshannon v. R. R. Co., 64 Mass. 228; Ryan v. R. R. Co., 23'Penn. St. 384. As to persons riding on free passes there is a conflict of au- thority. Such passes generally contain a release of the company from any liability, and they are sustained by some courts on the ground that the carrier is not acting as a public carrier, but as a gratuitous bailee, and may make any arrangement satisfactory to the holder of the pass. Quimby v. R. R. Co., 150 Mass. 365; Gris- wold v. R. R. Co., 53 Conn. 371. The opposing decisions deny the carrier's right to throw off his character of public servant, on the ground that freedom from liability in such cases would tend to lessen the care necessary for properly conducting the business and so endanger the other travelers. Jacobus v. Ry. Co., 20 Minn. 125; R, R. Co. v. McGown, 65 Tex. 640. The above cases of strictly free passes should be carefully dis- tinguished from those like R. R. Co. v. Stevens, 95 IT. S. 655, where the passenger, though on a pass in the usual form, had contracted to make some investigations for the company in Montreal, and they CABEIEBS. 1 3 had agreed to pay his expenses. There the clause limiting the com- pany's liability was clearly invalid, the carriage not being gratuitous in any sense. b. Liability to Passengers for Injury.* 34. So far as care to secure the safety of the passenger is con- cerned, under what circumstances is the carrier liable? He is liable for any injury partly or wholly caused by a failure to take the utmost care possible in providing any of the appliances incidental to his service as a carrier. For a railroad these would include the roadbed (Gleeson v. R. R. Co., 140 U. S. 435), as well as the carriages themselves (Meier v. Penn. R. R. Co., 64 Penn. St. 225), and servants. Hall v. Steamboat Co., 13 Conn. 319. The question is, not whether it was scientifically possible for any one in the process of making to discover the defect in the machinery, but whether it was practically possible by human care and fore- sight; and, subject to this explanation, the prevailing rule is that the carrier is a warrantor of the soundness and reliability of his appliances. Sharp v. Grey, 9 Bing. 457, and cases supra. There is some authority, however, which limits the liability to injuries arising from defects discoverable by external examination, i. e., that the warranty does not extend to the work done by others than the company, provided the manufacturers of the appliances have been selected for their known skill. Ingalls v. Bills, 50 Mass. 1; Alden v. R. R. Co., 26 N. Y. 102. 35. The preceding question would include any liability from the negligence of servants of a railroad company or other car- rier, but carriers are liable also for acts of servants which are. wilfully wrong and for many trespasses by other passengers. How far does this extend, and on what principle is it based? The liability rests on the duty of a common carrier, as such, to treat the passenger respectfully and protect him from violence, and its existence is unquestioned. The company intrusts the manage- ment of its conveyances to conductors and other employees and must respond in damages for their violations of the duty referred to. Goddard v. R. R. Co.. 57 Me. 202; R. R. Co v. Flexman,'l03 111. 546. The liability for injuries to travelers from other passengers rests on the same principle. Putnam v. Street Ry. Co., 55 N. Y. 108. c. Baggage. 36. What is baggage, legally considered? It is anything the passenger may reasonably need to carry for personal use and convenience on that journey, taking into conside- As the usual rules of contributory and imputed negligence are not varied when carriers are involved, it is unnecessary to add here to the full discussion of them under the subject of Torts. 74 QUESTIONS AND ANSWEKS. ration its ultimate purpose, the articles which persons of the same class ordinarily carry on similar journeys and other elements. Many difficult and interesting questions arise, but the above defini- tion is, perhaps, sufficiently comprehensive. K. R. Co. v. Fraloff, 100 U. S. 24; Bank v. Brown, 9 Wend. 85. See on the whole sub- ject of baggage, Macrow v. R. R. Co., L. R. 6 Q. B. 612. The tools of a watchmaker, carried to be used when he found em- ployment, are baggage, (R. E. Co. v. Morrison, 34 Kan. 502); and a man's baggage may properly include things belonging to his wife. Dexter v. R. R. Co., 42 N. Y. (3 Hand) 326. Bicycles have been on the line, but they are close to guns or fishing rods which may clearly be baggage, and probably usage, through which anything may become baggage, has gone far enough now to include them. State ex rel. Bettis v. Mo. Pac. R. R. Co., reported 43 Cent. L. J. 377. See, on guns and the like, Hawkins v. Hoffman, 6 Hill, 586; and on bicycles, 43 Cent. L. J., supra, and 12 Harv. Law Rev. 119 (1898.) It should further be noted that, although the carrier cannot refuse to carry any armies for the passenger which are properly taken with him as baggage, it does not follow that it is unreasonable for him to charge for " overweight." 37. Suppose a man sends his trunk a day ahead, and it is destroyed or lost. Can he recover? He cannot. The contract of the railroad company is not to carry a trunk and a passanger, but a trunk with a passenger. Historically considered, this is plainly true, since originally the baggage was brought in the hands of the passenger. Therefore, if one sends his trunk to the station more than a reasonable time before he himself intends to leave, it is a fraud on the company, and the latter is liable only for wilful injury. Wil- son v. R. R. Co., 56 Me. 60, 57 Me. 138; Beers v. B. & A. R. R. Co., 67 Conn. 417 (1896) ; Marshall v. Pontiac, etc., R. R. Co., 126 Mich. 45. 38. What is the extent of the liability of the carrier for bag- gage intrusted to his care; and what is his duty towards articles retained in the passenger's possession? His liability for baggage taken into his possession is that of a carrier of goods. Ouimit v. Henshaw, 35 Vt. 605. But as to the articles of baggage retained by the passenger, the rule is that the company is liable only for negligence by itself or its agents. Kinsley v. R. R. Co., 125* Mass. 54; Henderson v. R. R. Co., 123 U. S. 61. d. Tickets and Regulations. 39. What is the general nature of a ticket? By issuing a ticket a carrier agrees to accept it in lieu of a money payment of fare, if it is used in compliance with prescribed CARRIERS. 75 conditions. It is a formal contract, and unless otherwise provided, it is freely transferable (Carsten v. R. R. Co., 44 Minn. 454); hence it is good in the hands of any bona fide holder. Any regulations, regarding its use as a means of paying fare, which appear on it or are usual in tickets of its class, are part of the contract. Examples are restrictions as to stopping over, or as to signing by the purchaser. Cheney v. R. R. Co., 11 JVlet. 121; Boylan v. R. R. Co., 132 U. S. 146. All carriers have the right to demand compensation in advance, and fare is, therefore, due on tne passenger's entering the train; the ticket, if demanded, must then be given up. A. neat case in illustration is Auerbach v. R. R, Co., 89 N. Y. 281, where a ticket expired at 12 o'clock. The train was boarded at 11:40, but the ticket was held, to be good for fare on the whole journey. To the same effect is Lundy v. R. R. Co., 66 Cal. 191. 40. Is the rule reasonable by which a higher price is charged for fare when paid on the train than when a ticket is bought at the station? Perfectly. The delay and difficulty of receiving fares and making change en route, the possible loss to the road from the dishonesty of conductors, and the convenience of the traveling public all go to show the reasonableness of the regulation, and it is uniformly upheld. Swan v. R. R. Co., 132 Mass. 116; R. R. Co. v. Rogers, 28 Ind. 1. The necessary qualification on such a rule is that the passenger shall have a reasonable opportunity to purchase his ticket at the station before the train leaves; what is such reasonable time de- pending on the character of the station, the number of people who have occasion to get tickets there and similar considerations. R. E. Co. v. Rogers, supra; Everett v. R. R. Co., 69 Iowa, 15. 41. It being admitted that a person refusing to pay fare on a train can be ejected, can the traveler, after such refusal, by ten- dering the fare, compel the company to carry him along on the same train? It is well settled that the company may refuse to receive him on the train, if he is actually put off. and the rule is considered a salutary one. O'Brien v. R, R. Co., 15 Gray, 20; State v. Campbell, 3 Yroom. 309. The carrier is probably equally safe in declining to carry him along on that train in the case where the tender is made before an actual ejectment, especially if the train has been stopped for the pur- pose, for the inconvenience and danger to other passengers are the ?ame. and otherwise the power to eject would prove much less use- ful. Skillman v. R. R. Co., 39 OhioSt. 444; O'Brien v. R. R. Co., 80 N. Y. 236. 76 QUESTIONS AND AXSWEPS. CONSTITUTIONAL LAW. I. " CITIZENS " AND " PERSONS." 1. Is a corporation a citizen within article four, section two t of the United States Constitution, and what does that section- provide ? The provision of section two of that article is that " The citizens of each State shall be entitled to all privileges and immunities of citizens of the several States." " The term ' citizen ' as used in the clause applies only to natural persons, members of the body politic owing allegiance to the State, not to artificial persons created by the legislature, and possessing only such attributes as the legisla- ture has prescribed." Pembina, etc., Co. v. Penn. 125 U. S. 181; s. c., Thayer's Cas. Const. Law, 468; Paul v. Virginia, 8 Wall. (U. S.) 180. 2. What are the provisions of the Fourteenth Amendment, sec- tion one, of the United States Constitution? Section 1 of the Fourteenth Amendment is as follows: " All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." 3. Pennsylvania passed a statute requiring an annual license fee from a foreign corporation which " does not invest and use its capital in this commonwealth." Is such a statute uncon- stitutional as " denying to any person within its jurisdiction the equal protection of the laws " ? Is any corporation a " per- son " within the meaning of this clause? Every domestic corporation would be a " person " within the meaning of the clause above quoted. " Under the designation of person there is no doubt that a private corporation is included." Pembina, etc., Co. v. Penn., 125 U. S. 181; s. c., Thayer's Cas. Const. Law, 468. The statute, however, would not be unconstitutional. A foreign corporation is not a corporation in Pennsylvania, and cannot, CONSTITUTIONAL LAW. 77 therefore, be a " person within its jurisdiction." A State may prescribe conditions upon the entrance of foreign corporations or may even exclude them, as it sees fit, without violating the Four- teenth Amendment. " The only limitation upon this power of the State to exclude a foreign corporation from doing business within its limits * * * arises where the corporation is in the employ of the Federal gov- ernment, or where its business is strictly commerce, interstate or foreign." Pembina, etc., Co. v. Penn. (supra). 4. A State passed a law which provided that it should be unlawful for any person who is not a bona fide resident of the State to act as trustee. Is such a law constitutional? No. It is against the Fourteenth Amendment to the Constitu- tion, which enacts, in part, that " No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." A citizen of the United States may acquire property in any State, and may, therefore, take it in trust. Roby v. Smith, 131 Ind. 342; s. c., Thayer, Cas. Const. Law, 457. II. " DUE PROCESS OF LAW/' 5. What are the provisions of the Fifth Amendment to the United States Constitution? The provisions of that amendment are as follows: " No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation." It is to be noted that the provision in regard to " due process of law " in the Fifth Amendment, is the same as that in the Fourteenth Amendment, quoted above (Ques. 2.) There is a great distinction be- tween the provisions, however, in that the Fifth Amendment is a re- straint upon the Federal government, while the Fourteenth Amend- ment was introduced as a restraint upon the several States. " It is not a little remarkable, that while this provision has been in the Constitution of the United States, as a restraint upon the Federal government, for nearly a century, and while, during all that time, the manner in which the powers of that government have been exercised has been watched with jealousy, and subjected to the most rigid criticism in all its branches, this special limitation upon. 78 QUESTIONS AND ANSWERS. itB powers has rarely been invoked in the judicial foruin or the more enlarged theatre of public discussion. But while it has been a part of the Constitution, as a restraint upon the power of the States, only a very few years, the docket of this court is crowded with cases in which we are asked to hold that State courts and State legislatures have deprived their own citizens of life, liberty or property without due process of law. There is here abundant evidence that there exists some strange misconception of the scope of this provision as found in the Fourteenth Amendment." Davidson v. New Orleans, 96 U. S. 97 (1877); s. c., Thayer, Cases Const. Law, 610. 6. What is meant by " due process of law," in the United States Constitution? Due process of law generally implies and includes, actor, reus, judex, regular allegations, opportunity to answer and a trial ac- cording to some settled course of judicial proceedings. Yet this is not universally true, and a proceeding may be " due process of law " in which there is no trial whatever. Thus the .Federal gov- ernment may proceed summarily against a revenue collector for a balance due, and a statute which provides for a seizure and sale of the collector's property to satisfy his indebtedness without ju- dicial procedure, is not unconstitutional. What is " due process of law," or to use the original phraseology of the Magna Charta, " the law of the land," is a question which must be regarded from an historical standpoint. Murray v. Hoboken Land Co., 18 How. (U. S.), 272; s. c., Thayer, Cases Const. Law, 600. In Davidson v. New Orleans (supra, Ques. 5), Mr. Justice Bradley said: " * * * in judging what is due process of law, re- spect must be had to the cause and object of the taking, whether under the taxing power, the power of eminent domain, or the power of assessment for local improvements, or none of these; and if found to be suitable or admissible in the special case, it will be adjudged to be due process of law; but if found to be arbitrary, op- pressive, and unjust it may be declared to be not due process of law." 7. A.'s property was assessed by statute for improvements made by the State, and the assessment was given the force of a judgment. A. was served with a notice to this effect and given a reasonable time to object by court proceedings. Is A. deprived of his property " without due process of law " by such a statute f No. A. has not been so deprived of his property " when as re- gards the issues affecting it, he has by the laws of the State a fair trial in a court of justice, according to the modes of proceed- , ings applicable to such a case." Davidson v. New Orleans, 96 U.; S. 97; s. c.. Thayer, Cases Const. Law, 610; Spencer v. Merchant,. 125 U. S. 345; s. c., Thayerj Cases Const. Law, 647. CONSTITUTIONAL LAW. 79 8. A. is imprisoned for contempt of court. He contends that he has betn deprived of his liberty without due process of law, not having been tried by a jury. Is his contention valid? No. Before the passage of the Fourteenth Amendment, courts had power to punish for contempt; this pcwer was not taken away by that amendment, and a summary proceeding is due process of law within the meaning of the Fourteenth Amendment. Eilen- becker v. Plymouth Co., 143 U. S. 31. So, also, where a person pleads guilty to an indictment, and is thereupon sentenced without a jury trial, but in the regular course of the administration of law, through the courts of justice of the State, he is not deprived of his liberty without due process of law. The Fourteenth Amendment was not designed to interfere with any regular court process or with the administration of the courts of a State in the manner provided by the laws of the State. In re Converse, 137 U. S. 624; s. c., Thayer, Cases Const. Law, 681. In constitutional law, perhaps, more than in any other subject, a question must be looked at historical'y, and in considering a question raised under the Fourteenth Amendment, it should always be re- membered that that amendment was passed after the emancipation of the slaves, and for the purpose of securing to them the full rights enjoyed by other persons before their emancipation. The operation of the amendment, however, is not confined to negroes, and it protects all persons, including resident.aliens and corpc/rations. Yick Wo v. Hop- kins, 118 U. S. 356; s. c., Thayer, Cases Const. Law, 532, note; Petnbina, etc., Co. v. Penn., 125 U. S. 181; s. c., Thayer, Cases Const. Law, 468. See also Ques. 3, supra. But the extent cf that protection is largely determined by considering the specific result for the accomplishment of which the provisions were framed. 9. A city passed an ordinance which prohibited any person from washing or ironing clothes within certain limits between 10 p. m. and 6 a. m. Is such an ordinance against the four- teenth constitutional amendment that no person shall be deprived of his life, liberty or property, etc. ? No. This is merely a police regulation and as such is not in violation of the Fourteenth Amendment. Such regulations, though special in their character, do not furnish just grounds of complaint if they operate alike upon all persons and property under the same circumstances and conditions. Barbier v. Con- nolly, 113 U. S. 27; s. c., Thayer, Cases Const. Law, 623. In that case the court went so far as to say that the Fourteenth Amendment had practically no effect whatever upon the police power. Mr. Justice Field there said: ' But neither the amendment (XIV) broad and comprehensive as It 80 QUESTIONS AND ANSWERS. Is nor any other amendment, was designed to interfere with the power of the State, sometimes termed its police power." Similar statements are made in Powell v. Penn., 127 U. S. 628; s. c., Thayer, Cases Const. Law, 637; and Mugler v. Kansas, 123 U. S. 623; s. c., Thayer, Cases Const. Law, 782. And perhaps this is the general expression of the Supreme Court, but the statement is broader than the facts of the cases in which it appears require, and would probably prove misleading and subject to some modification if a proper state of facts were presented. It is almost invariably true that a statute passed, bona fide, for the health or welfare of the State, is constitu- tional, but if a statute should be enacted which was actually contrary to the Constitution or any of the amendments, the fact that it came under the police power would not save it. The police power, like any other power of the State, must conform to the requirements of the Constitution. Thus before the Fourteenth Amendment it would have been within the power of the States to provide different kinds of schools for different classes of people. But after that amendment, although sep- arate schools could be provided for colored or other people, they could not make State provisions for different A-J/K/S of schools, providing only Inferior instruction for certain classes. An accurate view of the operation of the Constitution and the amend- ments upon the police power of the States is expressed by Earl, J., In In the Matter of Jacobs, 98 N. Y. 98; s. c., Thayer, Cases Const. Law, 627. He there says: " These citations are sufficient to show that the police power is not without limitations, and that in its exercise the legislature must re- spect the great fundamental rights guaranteed by the Constitution." III. THE POLICE POWER. 10. A railroad company is required by a statute to do away itiith grade crossings and to pay all expenses, including damages to neighboring property owners. Is this statute against the Fourteenth Amendment and unconstitutional, because it de- prives the plaintiff of his property without due process of law? No. Such a statute, though extreme, would come within the range of the police power of the State. New York, etc., K. R. Co. v. Bristol, 151 U. S. 556; s. c., Thayer, Cases Const, Law, 687. " The police power may be defined in general terms as that power which inheres in the legislature to make, ordain and estab- lish all manner of reasonable regulations and laws, whereby to preserve the peace and order of society, and the safety of its mem- bers, and to prescribe the mode and manner in which even' one may so use and enjoy that which is his own, as not to preclude a corresponding use and enjoyment of their own by others." Cooler, Principles of Const, Law, 320. " This is a most comprehensive branch of sovereignty, ex- tending as it does to every person, every public and private right, CONSTITUTIONAL LAW. 81 everything in the nature of property, every relation in the State, in society, and in private life." Cooley, Principles of Const. Law, 238. See, also, Munn v. Illinois, 94 U. S. 113; s. c., Thayer, Cases Const. Law, 743; Barbier v. Connolly, 113 U. S. 27; s. c., Thayer, Cases Const. Law, 623. 11. Has the legislature the power to fix rates for warehous- ing grain and carrying passengers? Yes. The only question seems to be that the rate must be a reasonable one, as the legislature has no power to compel the doing of services without reward. " When private property is devoted to a public use, it is subject to public regulation." Certain other kinds of business, also, hold such a peculiar relation to the pub- lic interest that there is superinduced upon them the right of pub- lic regulation, as ferrymen and hackmen, and interest on use of money, and regulating the cost of elevating grain. Budd v. New York," 143 U. S. 517; s. c., Thayer, Cases Const. Law, 804; Munn v. Illinois, 94 U. S. 113; s. c., Thayer, Cases Const. Law, 743. In dealing with statutes passed for the public interest under the police power, the authority of the courts is on principle very limited. The courts are not entitled to approach such statutes as if they were themselves legislators. The propriety of the legislation is a question with which they have no right to deal. As to that, the legislature is the sole judge. The only question which a court may consider Is whether the legislature had the power to pass the statute. If it had such power, the statute is constitutional no matter how ill-judged Its enactment may have been. In determining the constitutionality of such police regulations the main and frequently the only question is, whether the legislature can reasonably say that there is a public interest for such an enactment. If so, then the legislation is possible. It is in passing on this ques- tion that the courts frequently exceed their power. Thus a statute prohibiting the manufacture of cigars in any tenement- house used for living purposes was held unconstitutional in New York, as depriving a person of his property without due process of law. and as not within the " police powers of a State." In the Matter of Jacobs, 98 N. Y. 98; B. c., Thayer, Cases Const. Law, 627. This case is, at least, extreme in holding that the exercise of the legis- lative power was unreasonable. The act is said to be to improve the public health, and such a view is hardly irrational. If the legislature can reasonably say that the act will improve the public health, the court has no authority to say that it is beyond the police power and unconstitutional. So also a statute to prevent deception in sales of dairy products and prohibit the manufacture of oleomargarine was also held unconstitur tional in New York, as against the Fourteenth Amendment, and not within the police power. People v. Marx, 99 N. Y. 377; s. c., Thayer, 6 '82 QUESTIONS AND ANSWERS. Cases Const. Law, G32. In Pennsylvania, however, there was a similar statute prohibiting the manufacture and sale of oleomargarine to pre- vent fraud in the sale of butter, and this statute was held constitu- tional by the United States Supreme Court. Powell v. Pennsylvania, 127 U. S. 678; s. c., Thayer, Cases Const. Law, 687. Mr. Justice Harlan there said: " The legislature of Pennsylvania * * * has determined that the prohibition of the sale, or offering for sale, or having in possession to sell for purposes of food of any [oleomargarine] * * * will pro- mote the public health and prevent frauds in the sale of such articles. If all that can be said of this legislation is that it is unwise, or un- necessarily oppressive to those manufacturing or selling wholesome oleomargarine, as an article of food, their appeal must be to the legis- lature, or to the ballot-box, not to the judiciary. The latter cannot Interfere without usurping powers committed to another department of government." In a previous passage in the same case, Mr. Justice Harlan also said: " It is scarcely necessary to say that if this statute is a legitimate exercise of the police power of the State for the protection of the health of the people, and for the prevention of fraud, it is not incon- sistent with that (XIV) amendment." 12. Give examples of a legitimate exercise of the police power. The following are examples of a legitimate exercise of the police power: A statute requiring a railroad to erect and maintain cattle-guards and fences at all crossings. Thorpe v. Rutland, etc., R. R. Co., 27 Vt. 140; s. c., Thayer, Cases Const. Law, 706. A statute requiring adjoining landowners to bear the expense of sidewalks and curbstones, on the ground of general comfort and convenience. Paxson v. Sweet, 1 Gr. (N. J.) 196; City of Lowell v. Hadley, 8 Met. (Mass.) 180. So also a statute requiring ad- joining owners to pay for draining marsh land, where each is al- lowed a hearing as to the amount of his assessment. Wurts v. Hoagland, 114 U. S. 606; s. c., Thayer Cases Const. Law, 768. A statute regulating the sale of liquor and the use to be made of premises where liquor is sold. The fact that a statute impairs the value of property does not make it unconstitutional. That is not a taking of property within the meaning of the Constitution. Bertholf v. O'Reilly, 74 N. Y. 509; s. c., Thayer, Cases Const. Law, 725; Mugler v. Kansas, 123 U. S. 623; s. c., Thayer, Cases Const Law, 782. A statute regulating the use to be made of the mails, prohibit- ing its use for lottery purposes, or for the sale of " green goods. " In re Rapier; In re Dupre, 143 U. S. 110; s. c., Thayer, Cases Const. Law, 732. The regulation of marriage and divorce also comes under this power. " Every independent State must be at liberty to regulate CONSTITUTIONAL LAW. 83 the domestic institutions of its people as shall seem most for the general welfare." Cooley, Principles of Const. Law, 239. A State law requiring all persons engaged in the plumbing busi- ness or drug business to pass an examination, and to register, is a legitimate exercise of the police power. Singer v. Maryland, 72 Md. 464; s. c., Thayer, Cases Const. Law, 874; State v Heinemann, 80 Wis. 253; s. c., Thayer, Cases Const. Law, 876, note. But a State statute imposing a tax on the captain or owner of a vessel at the rate of $1.50 for each passenger landed in the port is void, as this is a matter belonging exclusively to Congress. Head Money Cases, 112 U. S 580, 590; s. c. Thayer, Cases Const. Law, 758. Personal rights and private property can never be arbitrarily invaded, however, under the mere guise of police regulations, and the question whether or not a statute is arbitrary as drawn, or in its operation, is frequently the only point upon which its constitutionality turns. Equal protection of the laws is guaranteed by the Fourteenth Amendment. It does not require, however, " that every person in the land shall possess precisely the same rights and privileges as every other person. The amendment contemplates classes of persons, and the protection given by the law is to be deemed equal, if all persons in the same class are treated alike under like circumstances and conditions, both as to privileges conferred and liabilities imposed." Cooley, Principles of Const. Law, 237. But when it is said that legislation may single out certain classes It Is to be understood that they cannot be so selected arbitrarily. There must be some good reason for the discrimination. Thus, to put the familiar example, a statute would be unconstitutional which was to be enforced only against red-haired men or blue-eyed men. Such a classification would be merely arbitrary. On this principle an ordinance forbidding any one from carrying on the laundry business without the consent of certain officers, was held unconstitutional where the officers arbitrarily withheld their consent from all China- men, but granted it to other persons. Tick Wo v. Hopkins, 118 U. S. 356; s. c., Thayer, Cases Const. Law, 774. So also an ordinance re- quiring all Chinamen to live within a certain district is void. In re Lee Sing, 43 Fed. Rep. 359; s. c., Thayer, Cases Const. Law, 861. But an ordinance forbidding all laundrymen from washing during certain hours in specified parts of a city is valid. Barbier v. Connolly, 113 U. S. 27; s. c., Thayer, Cases Const. Law, 623. IV. THE RIGHT OF EMINENT DOMAIN. 13. Define the right of eminent domain. " The right of eminent domain is that attribute of sovereignty by which the State may take, appropriate or divest private prop- erty whenever the public exigencies demand it; or, according to '84 QUESTIONS AND ANSWERS. the usual definition, it is the right of taking private property for public purposes. And to this right the obligation always attaches of making just compensation for the property taken." 19 Monthly Law Reporter (Boston), 241, 247; Thayer, Cases Const. Law, 953. It is to be remembered, however, that in the absence of constitu- tional prohibition, the right of eminent domain may be exercised with- out compensation. There was no such limitation to the right at common law, and where the limitation exists, it has been added by our Federal or State Constitutions. " The obligation to give just compen- sation, unquestionable and universally admitted, is a moral obligation, not enforceable by courts, it would seem, as against clear and indu- bitable action of the legislature, unless the Constitution add to this moral obligation a legal sanction." Thayer, Cases Const. Law, 952, note 1. There are only three States, however, the Constitutions of which do not contain a clause expressly requiring compensation. All of the other State Constitutions and the Federal Constitution contain a clause (substantially the same in all) that " private property shall not be taken for public purposes without just compensation." Thayer, Cases Const. Law, 954, 955, note 1. See Randolph, Em. Dom. 401-416, for provisions of the State Constitutions. " But, although the right is inherent in sovereignty, it lies dormant until legislation is had, defining the occasions, methods, conditions and agencies under and by means of which it may be exercised." Cooley, Principles Const. Law, 345. 14. Has the Federal government the right to take land in a State for Federal purposes? Yes. Such a right in the Federal government was questioned until 1875 when it was settled by Kohl v. U. S., 91 U. S. 367. 15. A State kgislature condemns property, and the owner claims that there is no public necessity for the taking, and that it is not taken for a public use. What redress do the courts afford? The courts have the right to inquire into the use to which con- demned property is to be put, and the final determination as to whether or not the use- is public rests with them. But if the use is public the question of necessity rests with the legislature. " Of course, there is the further limitation, necessarily implied, that the use shall be a public one; upon which question the deter- mination of the legislature is not conclusive upon the courts. But, when the use is public, the necessity or expediency of ap- propriating any particular property is not a subject of judicial cognizance." Fairchild v. City of St. Paul, 46 Minn. 540; s. c., Thayer. Cases Const. Law, 965; People v. Smith, 21 K Y. 595; s. c., Thayer, Cases Const. Law, 962; Dingley v. Boston, 100 Mass. 544. By the Michigan Constitution, however, the necessity for CONSTITUTIONAL LAW. 85 using the property is a question for a jury or a commissioner ap- pointed by the court, and not for the legislature, as in other States. Const., art. 18, 2; Paul v. Detroit, 32 Mich. 108, 113. Such a provision is certainly very strange, as by it a legislative question which may be of the greatest importance is frequently left to twelve men selected by lot. 16. A State legislature seeks to take the real estate and fran- chise of a corporation by right of eminent domain. The cor- poration contends that their franchise cannot be taken on account of the constitutional prohibition against impairing the obligation of contracts. Is the contention sound? Xo. All contracts, whether with a State, or between individuals, are made subject to. the condition that they may be affected by an exercise of the right of eminent domain. Any kind of property can be taken. " We are aware of nothing peculiar to a franchise which can class it higher, or render it more sacred, than other property. A franchise is property, and nothing more." The West River Bridge Co. v. Dix, 6 How. 507, 532; s. c., Thayer, Cases Const, Law, 976. 17. A railroad, by legislative authority, built its track in such a way as to remove an embankment which protected A.'s land in time of freshet. The embankment was not on A.'s land, but his property was overflowed by freshets. Would such a construction of the road constitute a " taking of property"? It has been held in such a case that property was taken within the meaning of the constitutional clause prohibiting the taking without compensation. In Eaton v. Boston, etc., R. R. Co., 51 N. H. 504, the court, by. Smith, J., said: " If property in land consists in certain essential rights, and a physical interference with the land substantially subverts one of those rights, such interference ' takes ' pro tanto, the owner's ' property.' The right of indefinite user (or of using indefinitely) is an essential quality or attribute of absolute property, without which absolute property can have no legal existence. ' User is the real side of property.' This right of user necessarily includes the right and power of excluding others from using the land." This view has been followed in several cases, and has been declared to be the " best considered case which can be found in the books upon this subject." Grand Rapids Booming Co. v. Jarvis. 30 Mich. 321. See also Thayer. Cases Const. Law. 1077. note, and cases cited. The question of what constitutes a taking of property is. however. to be looked at in the light of the historical conception of the meaning of a taking of property, and where so viewed, it is a question whether the courts have not over refined in such a case as Eaton v. R. R. Co. 86 QUESTIONS AND ANSWERS. The idea of property as a " bundle of rights " was not as exact as this, at the time of the Constitution, and the word " property " must be interpreted by much that has been done. The cases holding that there must be a more absolute appropriation of the property, to come within the meaning of the constitutional prohibition, seem the more sound. See Transportation Co. v. Chicago, 99 U. S. 635; s. c., Thayer, Cases Const. Law, 1081. V. TAXATION. 18. Upon what constitutional ground may the State or the Federal government levy taxes? " The power to tax is an incident of sovereignty, and is coex- tensive with the subjects to which the sovereignty extends. It is unlimited in its range, acknowledging in its very nature no limits, so that security against its abuse is to be found only in the re- sponsibility of the legislature which imposes the tax to the con- stituency who are to pay it." Cooley, Principles of Const. Law, 55. A tax cannot, however, be constitutionally levied for any but pub- lic purposes, and statutes which are enacted for the collection of money to be devoted to a private use are unconstitutional, however deserving the purpose may be. Thus, it was held that a tax could not constitutionally be imposed to collect money to be loaned to the people who had suffered by the great Boston fire. Lowell v. Boston, 111 Mass. 454; s. c., Thayer, Cases Const. Law, 1224. So, also, a tax to aid private corporations to carry on manufacturing business; Loan Ass'n v. Topeka, 20 Wall. (U. S.) 655, 663; s. c., Thayer, Oases Const. Law. 1235; and a tax to supply farmers who have lost their crops with provisions and seed. State v. Osawkee, 14 Kan. 418; s .c., Thayer, Cases Const. Law, 1247, note. The principle upon which these cases were decided is sound, but it seems a question whether or not it is properly applied in all of them. It may be that it is for the benefit of the pub- lic that a private person should be benefited. Thus, in Lowell v. Boston, the statute was to make possible a rapid rebuilding of the city, which would, seem to have many advantages to the public, although the court treated the suggestion of a public purpose in the statute as not worth arguing. Such legislation should be looked at in view of the consideration whether or not there is a reasonable public purpose, and not merely in answer to the question, whether or not some private person or corporation will also be benefited. Perry v. Keene, 56 N. H. 514; s. c., Thayer, Cases Const. Law, 1247. 19. How far is the Federal government subject to taxation by the States? N"o property, whatever, of the Federal government can be taxed by the States. Wisconsin Cent. B, E. Co. v. Price Co., 133 U. S. 496; s. c. Thayer, Cases Const. Law, 1397. CONSTITUTIONAL LAW. 87 Neither can the salary of a Federal officer be taxed. Dobbins v. Coni'rs Erie Co., 16 Pet. (U. S.) 435; s. c., Thayer, Cases Const. Law, 13o2. Nor United States bonds. Weston v. Charleston, 2 Pet. 442: s. c., Thayer, Cases Const. Law, 1346. Nor a bank created by the United States as its fiscal agent. McCulloch v. Maryland, 4 Wheat. 316, 368; a. c., Thayer, Cases Const. Law, 1340. It is equally well established that the Federal government cannot tax the salary of a State officer. The Collector v. Day, 11 Wall. (U. S.) 113; s. c., Thayer, Cases Const. Law, 1378. The process of a State <.-ourt is also exempt. Warren v. Paul, 22 Ind. 276; Georgia v. Atkins, 1 Abb. (U. S.) 22. VI. Ex POST FACTO AND EETEOACTIVE LAWS. 20. 7s the Federal or the State government prohibited from passing ex post facto laws by the United States Constitution? Both are prohibited. Const., art. I, 9, cl. 3; art. I, 10, cl. 1. 21. Distinguish between retrospective and ex post facto laws, and define the latter. All ex post facto laws are retrospective, but only retrospective laws of a criminal nature are ex post facto within the meaning of the. Constitution. Ex pott facto laws were defined by Chase, J., in Calder v. Bull, 3 Dall. 386 (s. c., Thayer, Cases Const. Law, 1435), as follows: " I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2. Every law that aggravates a crime, or makes it greater than it was, when committed. 3. Every law that changes the punishment, and inflicts a greater pun- ishment than the law annexed to the crime, when committed. 4. Every law that alters the legal rules of evidence, and receives less or differ- ent testimony than the law required at the time of the commission of the offense, in order to convict the offender. All these and similar laws are manifestly unjust and oppressive. In my opinion, the true distinction is between c x post facto laws and retrospective laws. Every er post facto law must necessarily be retrospective, but every retro- spective law is not an ex post facto law; the former only are prohibited. * * * But I do not consider any law ex post facto, within the prohi- bition, that mollifies the rigor of the criminal law; but only those that create, or aggravate, the crime, or increase the punishment, or change the rules of evidence, for the purpose of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time, or to save time from the Statute of Limitations, or to excuse acts which were unlawful, and before committed, and the like, is retrospective. But such laws may be proper or necessary, as 88 QUESTIONS AXE ANSWERS. the case may be. There is a great and apparent difference between making an unlawful act lawful, and the making an innocent action criminal, and punishing it as a crime." VII. STATE LAWS IMPAIRING THE OBLIGATION OF CONTRACTS. 22. What is the provision of the Federal Constitution pro- hibiting Congress from passing statutes impairing the obliga- tion of contracts? There is no such provision. Unlike the provision against c.r post facto laws which is made binding both upon Congress and the States, the provision against passing laws impairing the obligation of contracts, is binding upon the States alone. Const., art. I, 10. 23. A State charters an educational institution for the pub- lic good, with certain powers. Can those powers be materially changed by later enactment ? In the famous Dartmouth College Case, 4 Wheat. 518 (s. c., Thayer, Cases Const. Law, 1565), it was held that a. charter was a contract, and that such a statute was unconstitutional as* impair- ing the obligation of contracts. This view has always been followed. It is admitted, universally, that where a State has made a con- tract the obligation of it cannot be impaired any more than the obligation of any other contract. Cooley, Principles Const. Law, 313. Perhaps the criticism is just, however, that in some instances the "court has been quick to discover a contract that it miiv! 182. In Hoare v. Rennie, 5 Hurl. & N. 19, Pollock, C. B., said: " The only question we have to 8. 114 QUESTIONS AND ANSWEES. deal with is 'whether, on a contract like this, if the sellers at the outset send a less quantity than they are bound to send, so as to begin with a breach, they can compel the purchasers to accept and. pay for that, the sending of which was a breach and not a periorm- ance of the agreement." That was a case of a breach in making the first of four shipments of iron agreed upon, and it was held to be fatal. But, even in the case of a breach in limine, the court will not consider it fatal, unless it has some material bearing. Tarrabochia v. Hickie, 1 Hurl. & N. 183. The fact is to be carefully moted, however, that the distinction be- tween a breach in limine and after part performance is only main- tained in cases of conditions implied in law, where the condition of one man's recovery is the performance of his own promises. In ex- press conditions and conditions implied in fact, absolute performance is essential. See Ques. 34, (supra). f . Divisible Contracts. 38. A. agreed to ship B. 5,000 tons of iron, 1,000 tons to be shipped per month and to be paid for upon delivery. A. shipped only 400 tons in the first month and 800 tons in the second, and B., upon learning these facts, refused to accept the shipments and claimed a right to rescind. A. claimed that each shipment was a separate matter, and that a default in one shipment gave B. no right to refuse a later installment. Which contention should prevail? B. would be entitled to rescind by the weight of authority in this country. The contract isa single one for the sale of 5,000 tons of iron, and the arrangement for payment and shipment only stipu- lated how it should be carried out. A divisible contract is one where the payment and consideration are apportioned, so that part payment may be secured after part delivery, but it is still a single contract, relating, however, to a series of transactions. The breach of such a contract is, therefore, to be looked at as any other breach, to ascertain how far it goes to the essence. In the present case it would entitle B. to rescind. Norrington v. "Wright, 115 U. S. 188. " This is the leading case on the point and represents the weight of authority in this country. See also Barrie v. Earle, 143 Mass. 1, where the entirety of such a contract was illustrated by a ruling that a man who had agreed to buy a series of books and pay for each upon delivery, could not rescind the contract upon the ground of fraud, without returning two volumes which he had received and paid for. The view of the English courts in regard to such contracts is, how- ever, that each installment of goods and the payment for it constitute CONTRACTS. 115 a distinct contract, and that no default in one installment can justify a refusal to perform the next. Simpson v. Crippin, I* R. 8 Q. B. 14. See also 2 Parsons on Contracts (8th ed.), *p. 571, note 1, and cases cited. The English view seems unsound and unsatisfactory in practice, but has been followed in Blackburn 7. Keilly, 47 N. J. Law, 290; Ski lima 11 Hardware Co. v. Davis, 53 id. 144. See also Johnson v. Allen, 78 Ala. 387; Hansen v. Consumers, etc., Co., 73 Iowa, 77; Haines v. Tucker, 50 N. H. 307; Cahen v. Platt, 69 X. Y. 348; Scott v. Coal Co., 89 Penn. St. 231. 39. A. agrees to sell land to B., the latter to pay in five install- ments of $1,000 each, and the deed to be given upon the pay- ment of the fifth installment. B. fails to pay as the installments become due, and after the day fixed for the payment of the last installment, A. sues for the entire amount. B. defends on the ground that the deed has not been tendered. Judgment for whom? If for A., for what amount? Upon sound principle judgment should be for A. for $4,000. Before the last installment was due A. had a perfect right to sue for the four installments due, without a tender of the deed. By the terms ol the contract the covenants to pay the first four install- ments were independent, and the fact that the fifth installment is due, which was only to be paid upon conveyance, cannot make the other covenants also dependent upon the tender of the deed. In Duncan v. Charles, 5 111. 561, 567, where a similar contract was un- der discussions, the court said: " In no imaginable case can an independent covenant, which has been once broken and upon which a cause of action has con- eequently accrued, be converted or shifted into a dependent covenant." See also Sheeren v. Moses, 84 111. 448. For the recovery of the last installment, however, a tender of the deed would be necessary. The contract makes that payment and the giving of the deed dependent. There is no difficulty, in prin- ciple, in enforcing such a contract in which there is both a de- pendency and an independency of covenants. Duncan v. Charles, (supra). It was held, however, in Beecher v. Conradt. 13 N. Y. 108, that in such a contract after the last installment came due the payment of the whole of the purchase money, and the conveyance of the land became dependent acts. Such a decision seems to violate sound principle, but is still law in New York. Eddy v. Davis, 116 N. Y. 247. 252. And in Connecticut the reasoning that where several items are due they must all be sued upon in one action has been carried to the extreme limit. Burritt v. Belfy. 47 Conn. 323. It seems unreasonable, however, that where money is originally due in installments, a defense which was originally only good as to the last of the installments, if they are 116 QUESTIONS AND ANSWERS. enforced severally, should, by the mere lapse of time, be construed so as to " leaven the whole lump." The New York cases, however, show the strong tendency of the courts to construe conditions as concurrent for the greater protection of the parties. In many cases of conveyance and in many other cases where condi- tions are concurrent, courts often drop into somewhat inexact lan- guage about the parties being " ready and willing " to convey or to perform. Of course the mere mental state of being " ready and will- ing," if unexpressed, would not be sufficient. " By the term ' tender ' is generally meant the actual physical production of the deed, and the reaching it out, with words of offer of it, to the vendee." Such a formality is frequently unnecessary, but the law does require a party so to act that he may be plainly understood. Lawrence v. Miller, 86 N. Y. 131, 137. g. Waiver of Performance. Anticipatory Breach.. 40. A. agrees to convey land to B. on September 1st, and B. agrees to purchase on that day. On August 1st B. says that he will never carry out the contract, and on August *2d A. sues for breach of contract. Can he recover? It is held in England that where a day is fixed for perform- ance, if one of the parties declares that he will not perform, such a declaration gives the other a good right of action at once, al- though the day of performance has not arrived. Hochster v. De la Tour, 2 El. & B. 678. The case is based largely upon arguments of convenience. At p. 690, Lord Campbell says: " It seems strange that the defendant, after renouncing the con- tract, and absolutely declaring that he will never act under it, should be permitted to object that faith is given to his assertion, and that an opportunity is not left to him of changing his mind." So, also, where a man promises to marry a woman on a certain day, and before that time marries another, he may be sued at once. Short v. Stone, 8 Q. B. 358. And where a man contracts to lease property on a certain day, and before that day leases to another, he may be sued before the day of performance. Ford v. Tiley, 6 Barn. & C. 325. These cases have been followed in most of the States where the question of suit upon an anticipatory breach has been settled. In Burtis v. Thompson, 42 N". Y. 246, the defend- ant promised to marry the plaintiff " in the fall," but early in October announced that he would not perform the contract, and the court held that the action could be brought immediately. Hochster v. De la Tour is approved by Dwight, C., in Howard v. Daly, 61 N. Y. 362, but merely by way of an elaborate dictum upon which the rest of the court expressed no opinion. In Shaw v. Republic Life Ins. Co., 69 K Y. 286, 293, the court re- CONTRACTS. 117 fused to concur in the English cases, but the point was not specifi- cally raised. They there held that where the defendant declares that he will not perform and does not withdraw his declaration before the day arrives, the plaintiff is excused for a nonperfonn- ance on his part, and may recover when the day has passed. See also Nichols v. S. S. Co., 137 N. Y. 471, 486; Wharton & Co. v. Winch, 140 id. 287. Since Burtis v. Thompson (supra) the question of a right to sue upon an anticipatory breach has not been decided in New York, and is expressly left open by the two cases last cited. Action upon an anticipatory breach is allowed in: Iowa: Crabtree v. Messersmith, 19 Iowa, 179; McCormick v. Basal, 46 id. 235. Illinois: Kadish v. Young, 108 111. 170. California: Eemy v. Olds, 88 Cal. 537. The question is discussed but not settled in Maryland. Dugan v. Anderson, 36 Md. 567; Pinckney v. Dambmann, 72 id. 173, 182. The question can hardly be said to be settled in Michigan. But see Sheahan v. Barry, 27 Mich. 217. In Daniels v. Newton, 114 Mass. 530, the question was squarely raised, and after a most elaborate examination of the authorities it was held that where a defendant notifies the plaintiff that he will not perform a contract by which he is bound to take a conveyance of land on a future day, such a notice cannot be a breach of the contract giving an immediate right of action, before the time set for performance has arrived. It may excuse the plaintiff from pre- paring to perform and " it may destroy all capacity of the party, so disavowing its obligations, to assert rights under it afterwards, if the other party has acted upon such disavowal. But we are un- able to see how it can, of itself, constitute a present violation of any legal rights of the other party, or confer upon him a present right of action. * * * Until the time arrives when, by the terms of the agreement, he is or might be entitled to its performance, he can suffer no injury or deprivation, which can form a ground of damages." The reasoning in this case seems sound, and in jurisdictions where the point is not settled should have great weight. On prin- ciple it is difficult to see how there can be a breach of performance before the date of performance has arrived; but where the plaintiff has acted upon an unqualified disavowal of the contract, it is right that the defendant should be estopped afterwards to say that he was ready to perform, as suggested above. See also Rayburn v. Corn- stock, 80 Mich. 448, 452; Zuck v. McClure, 98 Penn. St. 541. h. Contracts Conditional upon Notice. 41. A. takes out a policy of insurance upon B.'s life and B. agrees to do nothing to render the policy void. He has never seen the policy, and without knowing that he will void 118 QUESTIONS AND ANSWERS. the policy by leaving the country, does so. Is he liable for breach of contract? No. Having had no notice that leaving the country would render the policy void, and having no practical means of learning that fact, unless notified by the plaintiff, he would not be liable for the breach. " The rule to be collected from the cases seems to be this, that where a party stipulates to do a certain thing in a certain specific event, which may become known to him, or with which he can make himself acquainted, he is not entitled to any notice, unless he stipulates for it; but when it is to do a thing which lies within the peculiar knowledge of the opposite party, then notice ought to be given him. That is the common sense of the matter, and is what is laid down in all the cases on the subject, and if there are any to be found which deviate from this principle, it is quite time that they should be overruled." Per Lord'Abinger, C. B., in Vyse v. Wakefield, 6 Mees. & W. 442. VIII. CONTRACTS IMPOSSIBLE OF PERFORMANCE. 42. A. conveys land to B., the latter covenanting only to build certain kind of buildings upon it. The land is then taken by act of legislature and used for other purposes. Has A. a right of action? If so, would damages be substantial or nominal ? A. would have no right of action whatever. Anything which the law makes impossible of performance without any fault on the part of the defendant the law will excuse. Bailey v. De Crespigny, L. R. 4 Q. B. 180. Where it is a foreign law, i. e., the law of another State, which renders the performance impossible, it is a question of fact, whether or not performance is impossible. There are three general classes of cases in which impossibility Is an excuse for nonperformance of a contract: 1. Where domestic law forbids performance, as in the case above. 2. Where the contract rests upon the supposition of the existence of subject-matter which is destroyed. 3. Where services are contracted for which are of a personal nature, and sickness or death prevents. In none of these cases can the other party to the contract recover for nonperformance. Thus, as an example of the second class, where A. contracts to make repairs upon B.'s building, and it is destroyed, A. will be excused for nonperformance. " The agreement on both sides is upon the implied condition that the chattel or building shall continue in existence, and the destruction of it without the fault of either of the parties will excuse performance of the contract, and leave no right of recovery of CONTRACTS. 119 damages in favor of either against the other." Butterfleld v. Byron, 153 Mass. 517, 519, and cases Cited. This rule does not apply, however, to a case where A. contracts to erect the building entire. In such a case he is solely responsible for it and if it is destroyed he must rebuild it Performance in such a case, i. e., the delivery of a completed build- ing, is not impossible, but simply more difficult. If a day were fixed for the delivery, and destruction made the completion of the building by that time impossible, of course the contractor would be excused for nonperformance in that respect, but the mere hardship would not excuse him. Butterfield v. Byron, (supra), and cases cited; Cutliff v. McAnally, 88 Ala. 507. Of course, intentional destruction would be no defense. In the third class of cases the law is universally established that sickness or death is such an act of God as to excuse performance, but where it may be plainly foreseen, it constitutes no excuse for non- performance. Jennings v. Lyons, 39 Wis. 553. Nor would it do so, probably, if It were wilfully brought about after the contract was entered into. Allen v. Baker, 86 N. G. 91, 97. Of course it is always competent to show that the party in default willingly ran the risk of performance becoming impossible, and any man may so contract, if he sees fit. Where such a question is at issue it is simply a question of fact whether " the party really did intend to warrant that to be possible which was impossible." Clifford v. Watts, L. R. 5 C. P. 577, 585. In Louisiana, in accordance with the principles of the civil law, the courts are more liberal in excusing a party on the ground of impos- sibility. Engster v. West, 35 La, Ann. 119. For a general citation of authorities upon the subject of Impossi- bility, see 2 Parsons on Contracts (8th ed.), 786, note 1; 787, note 1. IX. ILLEGAL CONTRACTS. a. In Restraint of Trade. 43. Two gas companies owning equal and exclusive rights under a municipal franchise combine and apportion the city between them for the purpose of avoiding competition and rais- ing prices. Will such a contract be sustained by the courts? No. Such a contract would be illegal upon the grounds of pub- lic policy as being in restraint of trade, and in promotion of mo- nopolies. Companies in such positions owe a public duty and will not be allowed to disregard that duty and combine in such a way as to turn their privileges solely to their own advantage by stifling competition. Chicago Gas Light Co. v. People's, etc., Co., 121 111. 530. In considering whether a contract is against public policy, as un- reasonably in restraint of trade, the kind of business to which the contract relates must be considered. Thus, as suggested above, wher* companies owe a public duty, the courts will be very strict in passing upon contracts whereby the public will be deprived of competition 120 QUESTIONS AND ANSWERS. and left to the mercies of a monopoly. Thus carriers can't pool their earnings or go into partnership, as they also owe a duty to the public. Hooker v. Vanderwater, 4 Den. (N. Y.) 349; Texas, etc., Ry. Co. v. So. Pac. Ry. Co., 41 La. Ann. 970. So. also, on similar grounds, courts will not uphold contracts which seek to organize or maintain a monop- oly in the supply of the necessaries of life, as in coal. Arnot v. Pitts- ton, etc., Coal Co., 68 N. Y. 558. It is to be observed, however, that frequently individuals may com- bine to do a thing which would be illegal if done by corporations owing a public duty. Thus stevedores, who owe no public duty, may legally apportion their business though gas companies may not. Collins v. Locke, L. R. 4 App. Cas. 674. See also Marsh v. Russell, 66 X. Y. 288; Hopkins v. Ensign, 122 N. Y. 144, 149. But where either private persons or public corporations are simply trying to obtain a monopoly and force prices, their contracts will not be sustained. The question is whether the agreement imposes an unreasonable restraint upon trade, and where the object is simply to secure freedom from competition and inflate prices, the contract will in almost every case be declared void. Am. Biscuit Co. v. Klotz, 44 Fed. Rep. 721; 2 Parsons on Contracts (8th ed.), 875, note 1, cases cited. But see Cen- tral, etc. Co. v. Cushman, 143 Mass. 353. The application of the rule as to contracts in restraint of trade to the classes of cases above noted is an extension, of recent years, of the principle that a contract was illegal which sought, for any considera- tion, to keep a man out of his trade in an unlimited territory, to lessen competition. This rule had its origin in England at a time when it was almost impossible for a man to change his trade and when the custom of apprenticeship was in full force. It was then held that a contract unlimited in extent, i. e., covering the whole kingdom, was ille- gal. In recent years, however, the test of a territorial limit has been abandoned in England, and the reasonableness of the restraint for the protection of the other party is now the sole test. If " the extent of the restraint is not greater than can possibly be required for the protection of the plaintiff, it is not unreasonable." Fry, J., in Rousillon v. Rousillon, 14 Ch. Div. 351, 364. See also Rogers v. Maddox [1892], 3 Chan. 346; Badische, etc., Fabrik v. Schott [lb92J, id. 447. In the United States the tendency of the courts is in accord with the English cases above cited, making the validity of the restraint depend upon its reasonableness under all the circumstances. In Massachusetts, how- ever, the old English rule is still followed, and it is held that any con- tract requiring a restraint over the entire State is necessarily invalid. Alger v. Thacher, 19 Pick. 51; Bishop v. Palmer, 146 Mass. 469. By act of Congress, July 2, 1890 (26 Stat. at Large, 209), contracts and monopolies in restraint of trade are made criminal, but this stat- ute only applies to contracts of an interstate nature. Congress has no authority to legislate in regard to contracts which are to be per- formed wholly within any State. For cases of indictments under this statute, see U. S. v. Greenhut, 50 Fed. Rep. 469; U. S. v. Nelson, 52 id. 646. CONTRACTS. 121 44. A. enters into a scheme to illegally advance the price of lard by " cornering the market " and employs B. as his broker, who knows of A.'s intention. B. defrauds A. by falsely charg- ing commissions and A. sues. What should he recover? By the weight of authority in this country A. would have no right of action whatever. The courts will refuse altogether to in- vestigate illegal transactions. Leonard v. Poole, 114 K". Y. 371. b. Wag-eiing 1 Contracts. 45. A. orders B., his broker, to sell wheat " short " for future delivery, his intention being simply to speculate and not to buy the grain for delivery. B. is ignorant of these facts. Can he recover for commissions due? Suppose he had known of A.'s intentions? The sale of property which one does not possess is not neces- sarily void as a wager, and may well be perfectly legitimate. The intention of the parties merely to gamble, at the time of entering into the contra t, is the important thing. If the actual transfer of property is never intended, then the contract for commissions is void if the gambling nature of the contract is known to both par- ties. In the case put, however, where B. was ignorant of his prin- cipal's intention, he could recover his commissions for executing a contract which, on its face, might be perfectly legal. Where he had full knowledge of A.'s illegal purpose, however, he would be regarded as particcps criminis. Irwin v. Williar, 110 U. S. 499; Harvey v. Merrill, 150 Mass. 1. But see Winchester v. Nutter, 52 N. H. 507, where the mere knowledge of a third person, who was not a party to a wagering contract, was held not to preclude recovery. Force was given to the fact that his compensation, as in the case of a broker, was fixed and in no way depended upon the result of the wager. The argument certainly has force, but other courts have not gone so far. It is not to be understood, however, that there is anything illegal in speculation. Where a purchase and actual delivery of goods are in- tended, contracts are perfectly valid. A contract is only void as- a wager when the parties are simply betting upon the rise and fall of prices in the market. The test is whether an actual delivery was originally intended. Irwin v. Williar. (supra), at p. 508; Wall v. Schnei- der, 59 Wis. 352. See also cases collected, 2 Parsons on Contracts (8th ed.), 879, note 1. 46. A. employs B. as his attorney to collect a claim by suit and agrees to give him one-half of the net sum collected, B. to pay costs of suit. After recovery A. sues B. for the entire amount recovered. Judgment for whom? 122 QUESTIONS AXD AXSWEES. According to the strict rules of the common law such an agree- ment would be considered a gambling contract, and would be void for champerty and maintenance, both the providing of money to prosecute a suit and the contract to act as attorney upon a contin- gent fee being looked upon with great disfavor. In some States, as Massachusetts, the strictness of the old rules still prevails. Ackert v. Barker, 131 Mass. 436. In most States, however, the courts have greatly modified the restrictions, especially in regard to champerty; and in California, Delaware, Michigan, Nebraska and New Jersey, champertv and maintenance are not judicially recog- nized. 5 Am. & Eng! Ency. (2d ed.), 823, 824. In New York also, they receive practically no recognition. Browne v. West, 9 N. Y. App. Div. 135. I. IN GENERAL. a. Nature. 1. Define a corporation and distinguish an ordinary 'busi- ness corporation from other kinds. Chief Justice Marshall's definition in the Dartmouth College case is, in part, " an artificial being, invisible, intangible and exist- ing only in contemplation of law." This and similar expressions are frequently employed in describing a corporation; but it should be kept in mind that in fact a corporation is not a being separable from its members. It is really a collection of individuals, author- ized by law to act in certain respects as one person. 1 Morawetz on Corporations, 1; 1 Kyd on Corporations, 13; 1 Thomp- son on Corporations, 1, 2. Corporations are either public or private. The latter, as dis- tinguished from the former, are based on the voluntary associa- tion of the members, while the former are governmental establish- ments with no contractual relation between those who compose them. Again, corporations are aggregate, composed of several members, or sole, consisting of a single person. Private corporations are subdivided into eleemosynary, ecclesias- tical, and civil. The ordinary business corporation, e. g., for transportation, manufacturing or newspaper purposes, is a private, civil corpora- tion, and it is with such that this section chiefly deals. See 1 Mora- wetz on Corporations, 2-5, and authorities cited. As part of its essential characteristic of collective action, a corpora- tion has a distinct name, the capacity to sue and be sued, and generally a common seal. As a rule, there is perpetual succession among its members, by transfer of the shares of its capital stock or otherwise, but this is not a necessary incident; and the exemption from individual liability for debts, while generally prevalent, is by no means in- dispensable to corporate existence. Liverpool, etc. v. Massachusetts, 77 U. S. 5G6; Warner v. Beers, 22 Wend. 103, per Senator Verplanck. 2. Distinguish between a private corporation and a part- nership? Morawetz points out the differences as follows: 1. While both are formed by the mutual agreement of those ivho compose them, the partnership relation may be established by 123 124 QUESTIONS AND ANSWERS. any persons, at any time, and is dependent only on the law of contract and agency, but a corporation cannot lawfully be formed without the authority of the legislature. It has been regarded as against public policy for individuals to act as a corporation, and the privilege can only be enjoyed by special permission from the legislative body. 2. At law, the members of a firm are always treated as individ- uals; the firm, as such, is not recognized. A corporation, on the other hand, is considered as one person, and its constituent parts are disregarded. It can be sued by one of its own members. 3. Each partner is liable for partnership debts to the full extent of his possessions, but the members of a corporation are ordinarily not liable to its creditors at all. 4. Partnership is a relation of special confidence and personal trust, and the act or contract of each partner is the act or contract of all. In a corporation the business is managed by agents, se- lected by a majority vote, and the personal element is very small. Any stockholder can transfer his shares and his rights to anyone he may choose. 1 Morawetz on Corporations, 7. 3. A. and B. own all the stock of the X. corporation, and in their own names,, execute a deed of real estate belonging to it. Does the title pass? No. The title cannot be at the same time in the corporation and in the individual members. As a practical matter, moreover, to recognize such a deed as valid, would render titles to land highly uncertain. Wheelock v. Moulton, 15 Vt. 519; Button v. Hoffman. 61 Wis. 20. 4. Is a corporation a " citizen " of the State under the laws of which it was organized so that it has the protection of the clause of the Constitution declaring that the citizens of each State shall he entitled to all the privileges and immunities of citizens of the several States? It is not. The term only applies to natural persons, owing allegiance to their respective States. It does not include artificial persons, who have only certain restricted powers and attributes. Moreover, the right to act as a corporation is a special privilege conferred, and can have no- operation outside the jurisdiction of the legislative body which grants it. Each State can entirely ex- clude foreign corporations or admit them on such terms as it sees fit. Paul v. Virginia, 8 Wall. 168; Christian Union v. Yount, 101 U. S. 352. b.. Creation. 5. How are corporations created? Almost all the States have a general law, under which individ- uals, by complying with the formalities prescribed, may organize CORPORATIONS. 125 a corporation, thus practically doing away with, the common-law prohibition. In some States, however, it is still necessary to se- cure a special charter in each case, while in others special charters are absolutely prohibited by their Constitutions. The charter or act of the legislature does not of itself create the corporation. It is a grant of a right to form a corporate body, and cannot take effect without the consent and acceptance of the cor- porators. This is generally easy to find in action taken by them under the terms of the charter, and may be inferred from an appli- cation for incorporation. 1 Morawetz on Corporations, 21-24; State v. Dawson, 16 Ind. 40. 6. Suppose several men meet and attempt, in good faith, to crganize a corporation in accordance with a general incorpora- tion law, but do not strictly comply with its terms; e. g., they file a certificate which fails to state the performance of certain acts required by the statute. They then proceed to act as a corporation. In a suit against a subscriber for the amount of his subscription can he show, as a defense, the defects in the plaintiff's organization? No. This organization is what is known as a de facto corpora- lion, and it is well settled that no one except the State can ques- tion its corporate existence. To constitute such a corporation, two things must be shown: (1) a charter, or a general incorporation law; (2) a user of the rights claimed to be conferred by it. If a bona fide attempt to organize according to the statutory pro- visions can be shown, very slight evidence of user will be suffi- cient to prove existence as a de facto corporation. Meth. Church v. Pickett, 19 N. Y. 482; R. R. Co. v. Caxy, 26 id. 75. If, however, the company not only violates the common-law prohibi- tion against acting as a corporation without authority of law, but Is also illegal because its dealings are in violation of some principle of morality or of public policy, the contract of the subscriber would be unenforceable on the latter ground. 2 Morawetz on Corporations, 758, and cases. So, again, where a subscriber signs articles agreeing to the organiza- tion of a company, " as therein stated," it must be so organized or he is not bound. Ind. Co. v. Herkimer, 46 Ind. 142. 7. A. "borrows money of a de facto corporation and gives his note. When sued on the note, he attempts to set up as a defense the lack of legal incorporation, but the court refuses to allow ii. What is the ground of the decision? It is frequently said that the recognition of dc facto corpora- tions as legal rests on an estoppel (Slocum v. Providence, etc., 126 QUESTIONS AND ANSWERS. 10 R. I. 112); but while this is plausible when brought forward in a suit against the company, the reason is not broad enough to cover all the cases. In the case suggested, it would be absurd to say that A. has misled the company as to its own organization. In reality there is no estoppel about it. The true ground of this recognition of a de facto corporation, which practically puts it on the same footing as a perfectly organ- ized de jure corporation, is public policy. The corporation actu- ally exists, though without authority of law. It would be a harsh and in many cases an absolutely unnecessary requirement to com- pel all corporations to be ready, at any length of time after their start, to prove their organization. Moreover, it is only by a rule of public policy that the corporation is not legal, and, on the same broad ground, it is plain that the ends of justice will be best served by treating as facts what all the parties have relied upon as such in their mutual dealings. 2 Morawetz on Corporations, 692, 750; Soc. Perun v. Cleveland, 43 Ohio St. 481 (with a full discus- sion of the subject); Swartwout v. R. R. Co., 24 Mich. 390. 8. // a de facto corporation refuses to perform its contract obligations can the creditor ignore the corporation and sue the members as partners? By the weight of authority, this cannot be done. Neither side intended a contract on those terms. The members did not so con- tract between themselves, and the third party did not contemplate such an advantage. The court has no right to create a new con- tract for them. 2 Morawetz on Corporations, 748; Snider Sons' Co. v. Troy, 91 Ala. 224; s. c., 24 Am. St. Rep. 887 (naming the States on each side of the question); Stout v. Zulick, 48 N. J. Law, 599. There is, however, some opposing authority. See Cook on Stock and Stockholders, 233; Bigelow v. Gregory, 73 111. 197. The members may, of course, so act as to make themselves liable in tort; and if they are in fact partners, a different case is presented. 2 Morawetz on Corporations, 749; National, etc. v. Landon, 45 N, Y. 410. c. Construction of Charters. 9. What general rule of construction is applied to ascertain the limit of the powers granted a corporation by its charter? The charter expresses the contract of the corporators between themselves, and also acts as the grant from the State to them of the right to act as a corporation, and it generally states only the main objects of the undertaking. The American rule is that cor- porations have the powers that are expressly set forth, and such others as are incidental or necessary to carry into effect the pur- poses for which they were established. The construction of the CORPORATIONS. 127 charter, is to be neither strict nor liberal, but simply according to the fair natural import of the language used. 1 Morawetz on Cor- porations, 316, '618, 320; Downing v. Mt. Washington Road Co., 4U X. H. 230. The English rule is that a corporation has all powers except those which are prohibited, but inasmuch as whatever is not ex- pressly or impliedly granted is impliedly prohibited, the result is the same. 1 Morawetz on Corporations, 317, and note. 10. The State grants a charter to the X. corporation to build a toll-bridge across the Charles river, and the bridge is accord- ingly constructed. Later it grants a charter to the Y. corpora- tion to build a- toll-bridge a few rods from the location of the existing one. Can the X. corporation prevent the building of the new bridge? It cannot. A charter which grants privileges that concern the public or that are in derogation of common right, such as the one held by the X. corporation, or a grant of exemption from taxation, is to be strictly construed against the corporation. " Every reason- able doubt is to be resolved adversely. Nothing is to be taken as conceded but what is given in unmistakable terms or by an im- plication equally clear. * * * This doctrine is vital to the public welfare." Fertilizing Co. v. Hyde Park, 97 U. S. 659, 666; Charles River Bridge v. Warren Bridge, 11 Pet. 420. But if an exclusive right is expressly granted, it is, in general, valid, as, for instance, a right to operate a toll-bridge, with a pro- vision in the charter, declaring that no other bridge shall be built for a distance of two miles in either direction. The Binghamton Bridge, 3 Wall. 71. d. General Powers. 11. How can you tell whether a corporation has authority to issue negotiable paper? It can lawfully do so, when necessary for the purposes for which it was organized, i. e., when such a proceeding would be, in the ordinary course of business, an appropriate and usual one if the corporation were an individual. The liability of the corpora- tion depends on principles of agency, and if the giving of a note would under ordinary circumstances be an appropriate means of carrying out the chartered purposes of the corporation, the payee can enforce it, even if in the particular case the transaction was for an unauthorized object. The payee, however, according to fundamental rules of agency, cannot recover, if he has notice that the act is unauthorized. 1 Morawetz on Corporations, 350, 351: 1'nion Bank v. Jacobs. 6 Humph. (Tenn.) 515; Moss v..Averell, 10 X. Y. 449, 457. 460; National Park Bank v. German, etc., Co., 116 id. 281. And see Ques. 25, infra. 128 QUESTIONS AND ANSWEBS. 12. A railroad company attempted to mortgage its property, including franchise, roadbed and all oilier property, to secure certain bonds issued to pay for construction. It had no express authority to do so. Is the mortgage valid? No. It is well settled, that a corporation cannot legally mort- gage, lease or sell its franchise, or any of its property which is essential to continue operations under the franchise, without legis- lative permission, stated expressly or by strong implication. One reason for this is that the legislature is the only body which can grant to individuals the privilege of acting as a corporation; a cor- jiorati^n. therefore, cnnnot be allowed to transfer HP franchise to A., B. and C., for it would then be the members of the corporation who would confer corporate rights and privileges. The property of ordinary trading corporations can generally be sold, because it is not as a rule essential to their continued exist- ence and activity; a new location can be secured. Leggett v. N. J., etc., Co., 1 N. J. Eq. 541; s. c., 23 Am. Dec. 728, and note. But the property of a railroad, or a gas or water company, is essential to the performance of its public duties. " The discharge of those duties is the leading object of their creation." Other reasons given for the rule are, the tendency to a monopoly by a union of corporations, the personal trust put in the original cor- porators by the legislature, and the rule of strict construction of charters concerning the public interest. Leases, mortgages and absolute transfers are all invalid for the same reason for they differ only in the degree by which they hamper or prevent the due performance of the public functions undertaken. Commonwealth v. Smith, 10 Allen, 448; Brunswick, etc., Co. v. United, etc., Co., 85 Me. 532, and especially the note to this case, 35 Am. St. Rep. 390, 397, 402, 405. 13. Can a corporation buy its own stock? It has been held that there is no objection to such a " purchase," that no one is injured provided the corporation is solvent, and that the corporation can hold it for sale like other marketable prop- erty. City Bank v. Bruce, 17 N. Y. 507; Iowa Lumber Co. v. Foster, 49 Iowa, 25; R. R. Co. v. Marseilles, 84 111. 145, and 643. But these decisions have been strongly opposed. The sale is virtually a withdrawal of the stockholder and a certain amount of capital stock from the enterprise. It deceives the public, who are dealing with the corporation, as to the real amount of money invested, and it injures the' remaining stockholders by weakening the treasury and hampering the operations of the concern. See 1 Morawetz on Corporations, 112-114; Coppin v. Greenless Co., 38 Ohio St. 275; Percy v. Millaudcn, 3 La. (0. S.) 570; Crandall v. Lincoln, 52 Conn. 73, CORPORATIONS. 129 e. Dissolution. 14. Are corporate rights lost by nonuser? A mere nonuser or misuser of corporate rights does not of itself work a forfeiture of those rights, or of the franchise, unless they are expressly made conditional upon their due exercise. The violation of duty may be a good reason for forfeiture and dissolution, at the suit of the State, but it cannot be taken advantage of, either collaterally or directly, bv an individual, for the only parties to the compact created by the act of incorporation are the corporation and the government. However great the breach may be, therefore, an individual can- not step in; for the State may waive it. Heard v. Talbot, 7 Gray, 113; Commonwealth v. Ins. Co., 5 Mass. 230; State v. Turnpike, 15 N. H. 162. It has even been held, that provisions in charters that in a cer- tain event, " the corporate powers shall cease," or, the charter " shall be void," mean only that they shall then be subject to forfeiture at the suit of the State. Briggs v. Cape Cod, etc., Co., 137 Mass. 71; Sewall Falls Bridge Co. v. Fisk, 23 N. H. 171. But see 2 Morawetz on Corporations, 1006. 15. In what way does the existence of a corporation come to an end? 1. By direct action by the legislature, if no constitutional priv- ilege be violated. 2. By expiration of the charter, as where there is a set time lim- ited for the duration of the corporation. 3. By agreement to dissolve and a surrender, with the State's consent. 4. By judgment of dissolution pronounced in a judicial pro- ceeding. On the whole subject, see Boston, etc. v. Langdon, 24 Pick. 49; 2 Morawetz on Corporations, 1004-1008. Death of all the members does not dissolve a corporation, ex- cept in a case where new members must be elected by vote of the old ones. 2 Morawetz on Corporations, 1009. The proceeding by the attorney-general, on behalf of the State, Is generally by a writ in the nature of declare a dividend out of the accumulated profits of the corporation rests with the directors.' The interest of a shareholder in these profits is merely an undivided and remote interest in common with the other shareholders, and it is only when the directors abuse their discretion that he can bring a share- holder's bill to compel the declaration of a dividend. Some part of the earnings may well be set apart as a surplus fund, or to in- crease and develop the business, and the facts of each case must determine whether the directors are wrongfully refusing to divide the profits or not. They have a wide discretion. Pratt v. Pratt, 33 Conn. 456; Scott v. Eagle Fire Ins. Co., 7 Paige, 203. On the other hand, " after a dividend is declared, all com- munity of interest in relation to such dividend, as between the- CORPORATIONS. 141 stockholders themselves and between the stockholders and the cor- poration, is at an end. The right of a party to whom the dividend is payable is recognized as a separate and independent right which may be enforced as against the corporation * * * . The true principle is, that the dividend, from the time that it is de- clared, becomes a debt due from the corporation to the individual stockholder, for the recovery of which, after demand of payment, an action at law may be maintained." King v. Paterson, etc., Co., 29 X. J. Law, 82 and 504. It is a severance of so much money from the general mass of the company's funds, and if the company becomes insolvent after the declaration, the money so appropriated cannot be used for pay- ment of creditors. It is the property of the individual stockhold- ers. Le Roy v. Ins. Co., 2 Edw. Ch. 657. 33. Suppose a stockholder owns land which will be increased in value by certain contemplated operations of the corporation. Can his rote in favor of such operations be questioned? A stockholder is very seldom disqualified from voting by his in- terest or his motive. In general, such considerations cannot be regarded; on practical grounds, it would be impossible to in- quire into them, and the right of each stockholder to the benefit of the personal judgment of the others is rather vague and shadowy, though an express provision by charter or by-law is still necessary to validate voting by proxy. 1 Morawetz on Corpora- tions, 486. Agreements among stockholders to vote for certain measures or in a certain way, even for a period of some years in the future, are not necessarily illegal (Mobile, etc., Co. v. Nicholas, 98 Ala. 92), but they are not favored (Shepaug Voting Trust, 60 Conn. 553; State v. Standard Oil Co., 49 Ohio St. 137; s. c., 49 Am. St. Rep. 541); and it is a rule that if the majority use their votes to control the corporate action unfairly, or for their personal ends, any of the minority can interfere. 1 Morawetz on Corpora- tions, *477, 529; Barr v. R. R. Co., 96 N. Y. 444. And see Ques. 28-30, supra. V. RIGHTS OF CREDITORS. a. Bights "With Respect to the Capital. 34. When, if ever, can a creditor interfere with the control of corporate affairs? The limits upon the rights of creditors to interfere with the management and disposition of the capital of a " going " corpora- tion are not very plainly marked. The capital is frequently said to be a " trust fund " for the cred- itors, but this must not be taken literally. A .corporation is no more a trustee for its creditors than an individual is for his QUESTIONS AND ANSWERS. " A corporation is a distinct entity; * * * in law it is as distinct a being as an individual is, and is erititled to hold property as absolutely as an individual can hold it. Its estate is the same; its interest is the same; its possession is the same." Graham v. E. R. Co., 102 U. S. 148. And see Catlin v. Eagle Bank, 6 Conn. 233. If a corporation is making a fraudulent conveyance to avoid its creditors' claims, a creditor can interfere just as in the case of a similar act by an individual (Graham v. R. R. Co., supra; Pond v. R. R. Co., 130 Mass. 134); and possibly he may do so if there is a funda- mental alteration of the enterprise whereby his security .is im- paired, as from a railroad company to a mining venture, for this would be like the dissolution of the corporation and the formation of a new one. 2 Morawetz on Corporations, 807, 808. But the company retains, and must be understood by every cred- itor to retain, the widest discretion in the management of its own affairs. Continual interference would be intolerable; and, there- fore, the mere improvidence of a corporate act, if without fraud, furnishes no ground for a creditor to interpose (2 Morawetz on Cor- porations, 782, 783; Mills v. Northern Ry. Co., L. R. 5 Ch. App. 621; Pond v. R. R. Co., supra); and this is true, even if the corpo- ration is insolvent in the sense of being unable at the time to pay its debts; it can continue the management and control of its affairs unless the assets are being fraudulently diverted or are going to waste. 2 Morawetz on Corporations, 786, 787; Paulding v. Chrome Co., 94 N. Y. 336; Catlin v. Eagle Bank, supra. 35. If the capital of a corporation has been returned to .the stockholders, either directly by a division or indirectly by the payment of dividends when there have been no profits, what re- dress has a creditor? In either of the cases suggested he may, upon a showing that he cannot recover his debt of the corporation itself, proceed against the stockholders for the funds so distributed. The capital is the fund which is represented to creditors as con- stituting the property of the corporation ; and it is upon this, there- fore, that they rely in dealing with it. Frequently, it is spoken of as a trust fund, as in the leading case of Wood v. Dummer, 3 Mason, 308, where there was an actual division of the capital itself among the stockholders. More accurately, perhaps, the responsibility to the creditors is grounded in tort; the stockholders in effect repre- sent that so much property has been put into the enterprise and has not been taken out. Williams v. Boice, 38 1ST. J. Eq. 364, and note (where stockholders were compelled to refund dividends the payment of which had impaired the capital). But compare Mc- Donald v. Williams, 174 U. S. 397 (1898). Whichever theory is correct, the principle itself is well established. Another case illustrating it is that where an indirect return of capital CORPORATIONS. 143 has been made by a transfer of corporate funds or property to a stockholder by a purchase of his shares; he is liable to make resti- tution, though no fraud or bad faith appears. Clapp v. Peterson, 104 111. 2fi; Crandall v. Lincoln, 52 Conn. 73. citing many authorities. See on the whole subject. 2 Story, Eq. Jur., 1232; Cook on Stock and Stockholders. 456; Bartlett v. Drew, 57 N. T. 587. Compare McDon- ald v. Williams, 174 U. S. 397, holding that a receiver cannot recover a dividend paid to a stockholder out of capital if the stockholder bona fide believes it to be paid out of profits and the corporation is solvent at the time. b. Right to Compel Payment of Stock Subscriptions in Full. 36. The X. corporation wag organized with a nominal capi- tal of $100,000. Part of the shares were taken by subscription and 75 per cent, of the par value' paid therein. The rest were subsequently issued to the stockholders as " bonus " stock, i. e., a pure gratuity. Upon the insolvency of the corporation, it is at- tempted on behalf of the creditors to compel the stockholders to pay the balance of their subscriptions, and to pay the par value of their " bonus " stock. What decision ? It is well settled that they must pay both of these items, even if by some device or other, such as a release or a change in the form of indebtedness, a way has been sought to cover the fact of non-payment. Courts are not unanimous, however, as to the reason of the rule. The commonest explanation is set forth in a leading case, to the effect that the capital stock is a trust fund for credit- ors. Sawyer v. Hoag, 17 Wall. 610. And see Cook on Stock and Stockholders, 199, and cases. But this term is misleading and has been explained by the Supreme Court itself to mean only that the claims of creditors must be satisfied before any of the capital can be distributed to stockholders. Fogg v. Blair, 133 U. S. 534, 541. Some decisions, again, say that there is an implied contract. Flinn v. Bagley, 7 Fed. Eep. 785. A third view, and the most sat- isfactory, from a logical standpoint, is that stated in Hospes v. Car Co., 48 Minn. 174. This court repudiate the theory of a " trust," and ground the liability in tort for fraud. They say: " Corporate property is not held in trust, in any proper sense of the term. A trust implies two estates or interests one legal and one equitable; one person as trustee holding the legal title, while another as cestui qnc trust has the beneficial interest. Absolute control and power of disposition are inconsistent with the idea of a trust. * * * It (a corporation) is a trustee for its creditors in the same sense and to the same extent as a natural person, but no further." And, later, in exposition of the tort theory, " The capital of a corporation is the basis of its credit. * * * People deal with it and give it credit on the faith of it. They have a right to assume that it has paid-in capital to the amount which it repre- sents itself as having; and if they give it credit on the faith of that representation, and if the representation is false, it is a fraud upon them. * * * It is the misrepresentation of fact in 144 QUESTIONS AND ANSWERS. stating the amount of capital to be greater than it really is that is the true basis of the liability of the stockholder in such cases; and it follows that it is only those creditors who have relied or who can fairly be presumed to have relied upon the professed amount of capital, in whose favor the law will recognize and enforce a lia- bility against the holders of ' bonus ' stock." See also Williams v. Boice, 38 N. J. Eq. 364. Thus, this liability is enforceable only by creditors who became such after an issue of stock not fully paid for, and who did not know of the actual facts under which it was made. First Xational, etc. v. Co., 42 Minn. 327; s. c., 18 Am. St. Eep. 510. And these propositions are supported also by the " trust fund " advocates. Handley v. Stutz, 139 TL S. 435; Coit v. Gold, etc., Co., 119 id. 343; 2 Morawetz on Corporations, 829, 830. On the whole subject, see a voluminous note, 3 Am. St. Eep. 806. The question whether a purchaser of stock issued as fully paid-up, and bought in the market without knowledge that any balance re- mained unpaid, can be compelled by a creditor to make up the de- ficiency, is more difficult On the one hand, there is the right of the creditor to have all the capital, on which he has relied, paid in in money or an equivalent. On the other, there is the great desirability of making stock readily transmissible from hand to hand; and this is much ham- pered, if every buyer of stock represented as paid-up must investi- gate the actual facts in order to be protected. The latter considerations have prevailed, and a bona fide purchaser of such shares is safe. 2 Morawetz on Corporations, 836; Steacy v. R. R. Go., 5 Dill. 348; Brant v. Ehlen, 59 Md. 1. 37. The X. corporation, in purchasing certain land needed for the purposes of the enterprise in which it was engaged, paid the seller for it in stock. The par value of the stock was greater than the actual value of the land by some $10,000. On the in- solvency of the corporation the creditors claimed that the seller had not fully paid for his stock and must make up the $10,000. Decision for whom ? The decision is for the defendant, provided the contract between him and the company was made in good faith, and the property put in at a fair b&na fide valuation. Originally, stock had to be paid for in money, but the rule is now universal that a payment is good if made by work and labor, or by a transfer of property, if the circumstances just stated appear. In other words, actual fraud, of which a gross overvaluation would, of course, be strong evi- dence, must be shown in order to impeach the transaction. Coit v. Gold, etc., Co., 119 U. S. 343; Wetherbee v. Baker, 35 N. J. Eq. 501. The case of Van Cott v. Van Brunt, 82 X. Y. 535, seems contra; but see the criticism of the case, 2 Morawetz on Corpora- tions, 826. CORPORATIONS. 145 c. Statutory Liability of Stockholders for Corporate Debts, in Excess of Subscription for Snares. 38. A Kansas statute provided that shareholders in corpora- tions should be personally liable for the corporate debts. The X. corporation ivas formed after the statute was passed and Y. became a stockholder by subscription outside of Kansas. To what kind of a liability is he subject? Every stockholder in a corporation becomes a party to the pro- visions of its charter and of the laws relating to such corporations which are in force in the State where it is created, no matter where he lives or where his subscription occurred. Such statutes as the one in question, being in force at the formation of the corpora- tion, are part of the voluntary agreement of the members, and bind them to the corporation creditors in a contractual obligation. Thus, this obligation is under the protection of the Federal Con- stitution, forbidding the impairment of the -obligation of contract. Hawthorne v. Calef, 2 Wall. 10. Moreover, it is not a penalty, in the sense of a punishment pro- vided as a police regulation for the protection of the State which passes the law and, therefore, unenforceable in other States. It is, on the contrary, remedial in its character, intended for the benefit of individuals dealing with the corporation, and enforceable in any court which has jurisdiction of the parties and of such a subject-matter. Plash v. Conn, 19 IT. S. 371; Paine v. Stewart, 33 Conn. 517. A neat case, in illustration, is AViles v. Suydam, 64 N. Y. 173: A statute provided for personal liability of shareholders and of directors until certain papers were filed, the directors being the agents charged with the executive duty of filing them. It was held that a person who was both a shareholder and a director could not be sued in the same action as shareholder and as director, being liable in contract in the former capacity and for a penalty in the latter. See also Derrickson v. Smith, 27 N. J. Law, 166; and compare Huntington v. Attrill, 146 U. S. 657; Diversey v. Smith, 103 111. 378; s. c., 42 Am. Rep. 14. The cases are in some confusion, owing partly to differences in the legislative language and intent, and partly to different construc- tions of statutes seemingly identical in structure. See, on the whole subject, 2 Morawetz on Corporations, 869-881, especially 870 and 877. 39. Suppose, under a statute of the kind spoken of in the pre- ceding question, a debt is incurred. A. is then a stockholder, 'but before suit is brought he sells to B. Which one is liable to the creditor? Sometimes the statutes provide for this contingency, as for ex- ample, by making a stockholder liable for one year after the debt arises. When no provision is made, the better doctrine is that the 10 146 QUESTIONS AND ANSWERS. one who owns the stock when the obligation is enforced is the one to be sued. As between A. and B. themselves, and as between them and the corporation, it is always understood that B. steps into A.'s shoes as to all rights and liabilities, and, as a practical matter, this liability ought to be included with the rest. Other- wise, it would cause almost inextricable confusion and needlessly long and expensive litigation to adjust the rights of all parties. Moreover, in the L ise of large corporations, the personal credit of individual stockholders seldom enters into the calculations of the third party. 2 Morawetz on Corporations, 888-891; Curtis v. Harlow, 12 Met. 3; Middletown Bank v. Magill, 5 Conn. 28, 63-71. Contra, Chesley v. Pierce, 32 N. H. 388. Cf. Allen v. Sewall, 2 Wend. 327; Rosevelt v. Brown, 11 N. Y. 148. VI. MUNICIPAL CORPORATIONS. a. In General. 40. An act of the Michigan legislature created a Board of Park Commissioners for the city of Detroit,, empowered them to purchase land for a large city park, and commanded the city authorities to provide the money to pay for it by taxation. They refused to do so. Can they be compelled to lay the tax ? This brings up the important distinction between the public character of a municipal corporation, as a political subdivision of the State, and its private or proprietary character as a corporate individual. In its former character, it is universally held that it is com- pletely under the control of the legislature, except so far as that body is restrained by the State or the Federal Constitu- tion. Being merely an instrumentality created for the more convenient administration of the government, its powers as well as its territory can be enlarged or diminished at any time; and ita rights and property are held for the welfare of the State as a whole, rather than for local purposes. Powers and privileges which may be granted it, in this capacity, are not contracts, and are, there- fore, subject to modification or repeal, as the legislature may deem expedient. Thus, the legislature may divide a township and apportion its liabilities between the two sections (Laramie County v. Albany County, 92 U. S. 307); it may control the means provided by a municipal corporation for the maintenance and equipment of a police force (Baltimore v. Board of Police, 15 Md. 376); or repeal a ferry franchise granted to a municipality. East Hartford v. Hart- ford Bridge Co., 10 How. 511. See also 1 Dillon, Mun. Corp. (4th ed.). 56, 57, 60-62. 65-68, 71. On the other hand, it is also recognized that such corporations can hold certain property and have certain property rights in a proprietary or private character, for the benefit of the local com- CORPORATIONS. 147 munity solely, and with many of the ordinary rights and liabilities of private ownership. The line of distinction is a delicate one to draw, and by no means settled by the decisions. 1 Dillon, supra, 57, 66, 67. As illustrations, such property includes a building used largely as a source of revenue, by renting to private, parties, Oliver v. Worcester, 102 Mass. 499; as well as city gas works, West- ern, etc. v. Phila., 31 Penn. St. 183; and see, for further illustration and discussion, 1 Dillon, supra, 68, and notes. The facts stated in the question are those of People v. Detroit, 28 Mich. 228; s. c., 15 Am. Rep. 202, where the court (per Cooley, J.) held that a city park was a matter, of private and local concern only, and that the State had no right to tax the city for such a purpose. See the discussion of the case in 1 Dillon, Mun. Corp., 72-74, and cf. Darlington v. Mayor, 31 1ST. Y. 164, 192-206. 41. What powers are impliedly given by the charter of a municipal corporation? How does the rule governing the sub- ject differ from that concerning charters of private or business corporations? Judge Dillon uses this language: "It is a general and undis- puted proposition of law that a municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words; second, those necessarily or fairly im- plied in, or incident to, the powers expressly granted; third, those essential to the declared objects and purposes of the corporation not simply convenient, but indispensable." 1 Dillon, Mun. Corp., 89. This strict rule exists because public corporations do not de- pend upon the mutual agreement of their members. The majority rules not only without the consent, but against the will, of the minority, and the only safety for individual property or liberty lies in the strict construction pointed out above. Spaulding v. Lowell, 23 Pick. 71; Hackettstown v. Schwackhamer, 37 X. J. Law, 191. " If there is a reasonable doubt as to its existence, it (the power) does not exist." Baldwin, J., in Crofut v. Danbury, 65 Conn. 294, 300. With private corporations the rule is also that the only powers implied are those which are necessary or incident to those ex- pressly granted, but a more liberal construction of the word " neces- sary " is adopted, except when the express power is in derogation of some public right. As a rule, the legislature is assumed to intend that a private corporation may carry on its affairs like an individual, and the charter is construed " neither strictly nor liberally, but according to the fair and natural import of it, with reference to the purposes and objects of the corporation." Bell, Ch. J., in Downing v. Mt. Washington Road Co., 40 N. H. 230. And see Ques. 9 and 10, supra. QUESTIONS AND ANSWEES. b. Liability in Tort. 42. A police officer, appointed and paid by city authorities, committed an assault and lattery on a citizen, while attempting to arrest him. The officer was in the enforcement of a city or- dinance, but acted in an unjustifiable manner. Is the city liable? No. The officer was employed to perform a public duty, one in which the city had no special interest or profit, and which it per- formed as a part of the governmental machinery of the State. The fact that the officer was appointed, employed and paid by the municipal authorities makes no difference; that system is only adopted for convenience in administering the functions of govern- ment. Buttrick v. Lowell, 1 Allen, 162. By the same principle a city is not liable for wrongful or negligent acts of firemen in the performance of their duties, (Jewett v. New Haven, 38 Conn. 368; Fisher v. Boston, 104 Mass. 87); or of the driver of an ambulance. Maximilian v. New York, 62 N. Y. 160. See 2 Dillon, Mun. Corp. 974-979. 43. A traveler was injured by a defect in a bridge caused by the neglect of the county to repair the structure. A general stat- ute imposed the duty to repair bridges upon all counties, but gave no right of action to an individual injured by neglect. Can the county be held liable? Towns, counties, school districts and the like, being quasi-corpo- rations (i. e., without charters, and thus wholly involuntary in organization), are at common law not liable in such a case, and no damages can be recovered except under a statute expressly giving such remedy. The doctrine was set out in Russell v. Men of Devon, 2 T. R. 667, as based on the fact that there was no corporate fund, or means of obtaining one, from which to satisfy a judgment. This decision was upheld in this country in Mower v. Leicester, 9 Mass. 247, and is generally followed in the other States, even where the town has power to levy taxes for erecting pu.blic works and keeping them in repair. The duty imposed is a public duty, and the local corporation derives no special benefit or pecuniary profit from it. 2 Dillon, Mun. Corp., 962, 963, and notes; Hill v" Boston, 122 Mass. 344; Eastman v. Meredith, 36 N. H. 284; Freeholders, etc. v. Strader, 18 N. J. Law, 108; Dosdall v. County, 30 Minn. 96; s. c., 44 Am. Rep. 185. 44. Would the answer be the same if the injury had been caused by a defect in a city street, the duty of keeping streets in repair being imposed by the charter, but no action for damages caused by defects being expressly given ? By the weight of authority, the city is liable in such a case. Sometimes the ground for thus charging a city or incorporated CORPORATIONS. 1-40 village, when a quasi-corporation (such as a county) would not be held liable under the same circumstances, is placed on the ground of the absolute control over their streets granted to such corporations; sometimes, on the ground that their char- ters are in fact always asked for (although theoretically imposed by the legislature), and that a contract to keep streets in repair arises, based on the special privileges granted to the com- munity by the incorporation. Judge Dillon is inclined to place it upon the absolute control over the streets, plus the adequate means supplied (by power of taxation) to perform the obligation, plus the public utility of the doctrine. However that may be, the rule is upheld by the majority of our courts. Barnes v. Dist. of Col., 91 U. S. 540, 551; Weet v. Brockport, 16 N. Y. 161; 2 Dillon, Mun. Corp., 999, 1017, 1022, 1023; and see the dissenting opin- ion by Cooley, J., in Detroit v. Blakeby, 21 Mich. 84. Contra, are the New England States and a few others, the lead- ing case being Hill v. Boston, 122 Mass. 344. See Burritt v. New Haven, 42 Conn. 174, 197 (and cf. Jones v. New Haven, 34 Conn. 1): Detroit v. Blakeby, supra. But in these States statutes gen- erally give a right of action. See 2 Dillon, supra, 1000, note. 45. A city altered a street so that a stream which naturally ran along one side was diverted to the other side, thereby securing better drainage for the highway. The work was carelessly done, so that X.'s cellar was flooded at every heavy rain. Can he recover damages from the city? The course of the decisions on this general subject is in such a state of confusion and contradiction that it would be presumptuous to attempt, in a book of this description, to speak of all the various rules, and modifications and exceptions thereto, which have been announced. It is clear, nevertheless, that a city is not liable to individuals for a mere failure to make or enforce ordinances or to exercise a duty like that of providing sewerage or fire protection. Such a duty is legislative, or, perhaps, quasi-judicial, in character. Rivers v. Augusta, 65 Ga. 376; Lincoln v. Boston, 148 Mass. 578; 2 Dillon, Mun. Corp., 949, and cases. And it is, perhaps, true (for the same reason) that it is not liable for damage caused by defects in the plan adopted, as distinguished from that arising from a careless construction of the work. Mills v. Brooklyn, 32 N. Y. 489; Henkel v. Detroit, 49 Mich. 249; Carr v. Northern Liberties, 35 Penn. St. 324; Child v. Boston, 4 Allen, 41. But see 2 Dillon, supra, 1046-1047, and cases cited. When, however, a scheme (e. g., of sewerage) has once been adopted, the satisfactory view, and the one most generally prevail- ing, is that the duty of the city becomes ministerial, and that the corporation is liable for damage caused by negligence in construc- tion or in the maintenance and operation of the works. In short it is 150 QUESTIONS AND ANSWERS. then liable, whenever, under the same facts, a natural person would be liable to the individual injured: and such was the reasoning and decision on the facts of the case stated in the question. Xevins v. Peoria, 41 111. 502; s. c., 89 Am. Dec. 392. The chief reason as- signed was that a stream of mud and water was turned upon the plaintiff's land. See, to the same effect, Seifert v. Brooklyn, 101 X. Y. 136; s. c., 54 Am. Eep. 664, and note; Barton v. Syracuse, 36 X. Y. 54; Field v. West Orange, 36 X. J. Eq. 118. The principle that municipal corporations may be held liable like individuals, for the improper management of property held by them, is also recog- nized in Eastman v. Meredith, 36 X. H. 258, and in Oliver v. Wor- cester, 102 Mass. 489. It may be added, as a partial explanation of the existing confusion on the subject, that in practice it is frequently of great difficulty to separate the legislative duties of a corporation from those of a ministerial character, or to distinguish defects in a plan from de- fects in its execution. Rochester White Lead Co. v. Rochester, 3 N. Y. 463; s. c., 53 Am. Dec. 316, and note; 2 Dillon, supra, 1049-1051. c. Liability for Money Borrowed or Other Benefits Received. 46. Suppose ihe charter of a city contains no reference to 'bor- rowing money. Can the city borrow and then issue negotiable paper in return for the funds so obtained? It is generally held that cities have an implied authority to bor- row money, since that is necessary to the ordinary management of their complex affairs. Pres., etc. v. Chillicothe, 7 Ohio (part II), 31; Mills v. Gleason, 11 Wis. 470; Clarke v. School District, 3 R. I. 199. See contra, Hackettstown v. Schwackhanier, 37 X. J. Law, 191, and cf. 1 Dillon, Mun. Corp., 117, 125. But the issuance of commercial paper is a different matter. The argument of necessity, which has led the courts to imply the power to borrow money, does not apply. The borrowing which may be necessary is for a temporary purpose, to provide for the city's wants until they can be met by the only proper method of raising funds taxation. But the issue of negotiable bonds or notes, enforceable by one purchasing in good faith before maturity whatever may have been the equities between the city and the original holder, may easily involve the citizens in overwhelming debt, con- tracted extravagantly or corruptly by careless or dishonest officials. This is a strong argument against any legislative intent to im- pliedly give such power, and represents the position taken by the weightier authorities. 1 Dillon, Mun. Corp., 507, 507a; Mayor v. Ray, 19 Wall. 478; Hackettstown v. Schwackhanier, supra. But see Mills v. Gleason, supra; Ketchum v. Buffalo, 14 X. Y. 356, holding less strict doctrines. If. however, there is an express power to borrow money, the power to issue negotiable obligations may generally be gathered CORPORATIONS. 151 from that. 1 Dill., supra, 125-127; \Villiamsport v. Common- wealth, 84 Penn. St. 487. But see, directly contra, Brenham v. Bank, 144 U. S. 173, overruling the established doctrine of the Federal courts and pointing out that if a legislature wishes to give the power to issue bonds it is easy for it to do so in express terms. 47. // a city is sued on a contract made by its officers, but ichich is outside the powers conferred by its charter, can the defense of ultra vires be set up? And if so, is there any remedy for a contractor from whom the city has received money or property? The general rule is, undoubtedly, that municipal corporations may set up that defense. The powers of its officers are conferred by legislative enactment and every one must take notice of them .at his peril. Moreover, such corporations do not depend for their existence upon the consent or mutual contract of their members; they are wholly artificial in their organization and have such pow- ers only as are given by the act which creates them. 2 Morawetz on Corporations, ^ 714. 718; 1 Dillon, Mun. Corp., 457; Vin- cent v. Nantucket, 12 Cush. 103; New Jersey, etc. v. Fire Commis- sioners, 34 N. J. Eq. 117. If, however, a city receives money into its treasury or accepts and enjoys the benefit of property derived under an ultra vires con- tract, it is bound by an implied or quasi-contractual obligation to restore it or pay for it, unless the transaction has been in disregard of a positive prohibition of law or is in violation of some principle of public policy. In the words of Field, Ch. J.: "If the city obtains money of another by mistake or without authority of law, it is her duty to refund it not from any contract entered into by her on the sub- ject, but from the general obligation to do justice which binds all persons, whether natural or artificial. If the city obtain other prop- erty which does not belong to her, it is her duty to restore it; or if used by her, to render an equivalent to the true owner, from the like general obligation; the law, which always intends justice, implies a promise. * * * The money must have gone into her treasury or been appropriated by her; and when it is property other than money it must have been used by her or be under her control." Argenti v. San Francisco, 16 Cal. 255, 282. See also 1 Dillon, Mun. Corp.. S 4:>s. 4<5->: Hitchcock v. Galveston, 96 U. S. 341: Thomas v. Port Hudson, 27 Mich. 320; Turner v. Cruzen, 70 Iowa, 202. 48. A statute provided that when authorized by a majority vote of a county, the County Commissioners were to subscribe for bonds of a certain railroad. A vote was taken and the subscription made. The bonds, which recited the statute and a 152 QUESTIONS AND ANSWERS. majority vote under the election therein provided for, came into the hands of a bona fide purchaser. On suit by him, the county set up as a defense that as a matter of fact the prescribed formalities prior to the election had not been performed. De- cision for whom? The facts stated are those of Knox County v. Aspinwall, 21 How. 539 (the first of a series of cases on the subject), where it was held that the commissioners were the body designated by the statute to determine whether a proper majority vote had been had, and that since the bonds recited the occurrence of all the conditions neces- sary to give the board power to issue them, the bona fides of pur- chasers was not affected by their not inquiring into the actual facts of the matter. The recitals bound the municipality conclusively. An additional reason for thus construing the legislative intent was that to require such an investigation would destroy, or at least seriously affect, the market for securities of this kind. See the state- ment of the rule by Strong, J., in Town of Coloma v. Eaves, 92 U. S. 484, 491. See also Humboldt v. Long, 92 id. 642; Chaffee County v. Potter, 142 id. 355; and compare Northern Bank v. Por- ter Township, 110 id. 608, where the rule is somewhat qualified. The doctrine set forth briefly above, though steadily adhered to by the Supreme Court, has not passed unchallenged. In a strong dissenting opinion to Humboldt v. Long, supra, three justices (Mil- ler, Davis and Field) expressed their conviction that it was danger- ous, unjust and illogical. They urged that an agent cannot establish his authority by his own representations, that legislative restric- tions on taxation are rendered abortive by such a construction, and that an easy road to fraud is provided, for, apparently, the only bonds that can be questioned are those which are issued in the face of an absolute prohibition, and which show by their con- tents that they are so issued. This view is supported by Judge Dillon. See his Mun. Corp,, 518-531. CRIMINAL LAW. 153 LAW. I. GENERALLY. 1. What is a crime? A crime " is a violation or neglect of a legal duty, of so much public importance that the law, either common or statute, takes notice of and punishes it." May's Grim. L. (2d ed.) 1. 2. What elements are necessary to constitute a criminal act? (1) All illegal acts are not criminal. An act only becomes a crime when it is of such a character that the interests of the public are involved. Acts which merely injure private persons individu- ally, are redressed by civil suits, in which the government is no party. Rex v. Wheatley, 2 Burr. 1125, 1128. (2) The act neeJ not be morally wrong. If the public good demands that rapid driving be made a crime, one who disobeys the statute, though in perfect ignorance, has still committed a criminal act. (3) There must be a criminal intent or criminal negligence. Criminal intent is simply an intent to do the act which violates the law and is not necessarily joined with an immoral motive. In the case of a statute, unless the legislature meant otherwise, the intent is usually implied from the mere violation, and ignorance of the statute is no excuse. The intent may also be constructive, as where a man, intending to commit one crime, commits another. Specific intent is only necessary when it is a necessary part of the crime, as assault with intent to kill. Such an intent can never be constructive. May's Crim. L. (2d ed.) 17-26. (4) There must be a criminal capacity, both mental and physical. Thus, infant?, who have not reached years of discretion or of criminal capacity, and insane people are not held criminally for their acts. Voluntary drunkenness, however, is no excuse, though it is admissible as evidence upon the existence of a specific intent. 1) lirium tremens and involuntary intoxication, however, are tr ated a? excusing a man from criminal liability. May's Crim. L. (2d ed.) 26-37. 3. What elements are necessary to constitute an attempt to commit a crime? (1) There must be some act " done in part execution of a design to commit a crime." The " design " or criminal intent is necessary, and the act which constitutes an attempt must be distinguished 154 QUESTIONS AND ANSWEKS. from acts which are merely those of preparation. Smith v. Com- monwealth, 54 Penn. St. 209, 212. (2) The means adopted must be reasonably calculated to the perpetration of the crime. Respublica v. Malin, 1 Ball. (Penn.) 33. But it is not necessary that the person should have the absolute power of completing the criminal design. Thus, where by a statute, stealing a sum less than $10 was only a misdemeanor, A. broke and entered B.'s house in- tending to steal all the money in the safe. There was less than ten dollars in the safe at the time, but A. was held to be guilty of burglary. He intended to steal all that the safe contained, without knowing how much there was. Harvick v. State, 49 Ark. 514. So, also, an attempt to pick an empty pocket is criminal, though there is no power of actually taking property. People v. Jones, 46 Mich. 441. See also People v. Moran, 123 N. Y. 254. In People v. Moran (supra), at p. 257, the law in regard to an at- tempt was well expressed by Ruger, Ch. J.: " Whenever the animo fnrandi exists, followed by acts apparently affording a prospect of success, and tending to render the commission of the crime effec- tual, the accused brings himself within the letter and intent of the statute. * * * The question whether, an attempt to com- mit a crime has been made is determinable solely by the condition of the actor's mind and his conduct in the attempted assumption of his design." And his act is not the less criminal nor the less deserving of punishment for the public protection, because the ac- cused fails to accomplish his crime " for some cause not previously apparent to him." 4. What will constitute a justification of acts, which would ordinarily be criminal? (1) The acts may be done in the execution of proper authority, as the hanging of a murderer by a sheriff, and even a private per- son may at times be justified in taking life, as in preventing the escape of a felon. 1 East, P. C. 298. (2) Public policy may demand the acts, as the destruction of property during a conflagration. Cooley on Constitutional Limita- tions (6th ed.), 739. (3) The acts may be done in the lawful defense of person or property. Regina v. Rose, 15 Cox C. C. 540. (4) It has been argued that necessity would be a justification, as where one pushes another from a plank to prevent both from drawning. U. S. v. Holmes, 1 Wall. Jr. (U. S.) 1 But it is very questionable how far a man may legally make another suffer what he himself wishes to avoid, merely because of his superior strength. Steph. Dig. Cr. L., art. 32. And it has been specifically held that shipwrecked sailors may not kill the weakest of their number, though that was the only way to preserve their lives. Reg. v. Dudley, 14 Q. B. Div. 273. CRIMINAL LAW. Io5 5. What are tlie three classes of crimes and how are they dis- tinguished? Crimes are classified as treasons, felonies, and misdemeanors. Treason is marked by active disloyalty against the State. Felonies are distinguished by their punishment and are all those offenses which are punished by death or by confinement in the State prison. 1 Bish. Cr. Law, 618. An act which was a felony at common law, unless some statute has provided otherwise, is still regarded as a felony in all the States, with the possible exception of Vermont. State v. Scott, 24. Vt. 127, 130. Misdemeanors include all other crimes of whatever degree or character. Walsh v. People, 65 111. 58, 60; 1 Russell on Crimes (6th ed.), 193. 6. How are criminals classed? Criminals are divided into principals and accessories. Principals have been divided into those of the first degree who actively commit the crime, and those of the second degree who, though present and encouraging the commission of the crime, do not actually participate in the act. This distinction has, however, become practically obsolete in many of the States. 1 Bish. Cr. Law (7th ed.), 648. Accessories are divided into two classes those before and those after the fact. An accessory' before the fact is one who, without being present, aiding or abetting, procures, advises or commands another to commit the crime. 4 Shars. Black. Com. 37. An ac- cessory after the i'act is one who, knowing that a felony has been committed, receives, relieves, comforts or assists the felon. 4 Shars. Black. Com. 38. This distinction is confined, however, to felonies; all parties in misdemeanors and treason are treated as principals. Ward v. People, 6 Hill (X. Y.), 144; Commonwealth v. McAtee, 8 Dana (Ky.), 28. To be held as an accessory after the fact, the defendant must be actually rendering personal assistance to the felon. Mere pres- ence is, of course, not enough. U. S. v. Jones, 3 Wash. C. C. 209, 223; People v. Cook, 5 Parker Cr. Rep. (N. Y.) 351. 7. A., standing in Massachusetts, shoots at and wounds B. in Connecticut, and B. dies of the wounds in New York. ]Yhich State has jurisdiction to punish the crime? Connecticut would have jurisdiction. The place where the pub- lic is injured is where the act takes effect and not where the shot is fired. Commonwealth v. Macloon, 101 Mass. 1, 6. Nor where the person dies. U. S. v. Guiteau, 1 Mackey (D. C.), 498. 156 QUESTIONS AND ANSWERS. 8. A. steals goods in X. county and carries them into Y. county. Can he be indicted in Y. county? Yes. It has been argued that there is a continuing trespass, and so a new taking in every jurisdiction into which the goods are taken. Commonwealth v. Uprichard, 3 Gray (Mass.), 434, 438. The better explanation, however, is probably historical. May's Criir. L. (2d ed.), 80. This principle of a continuing trespass has also been applied to the case of goods stolen in one State ECONOMY. a. Affray. 14. What constitutes an affray? An affray is the fighting of two or more persons in some public place, to the terror of the people. 4 Shars. Black. Com. *p. 145. The place must be a public one, that is, where the public may wit- ness the breach ot the peace. Garwile v. State, 35 Ala. 392. But actual fear need not be excited among the onlookers. It is enough if the conduct of the accused be calculated to excite fear. One defending himself from attack, however, is never guilty of any offense. Klurn v. State, 1 Blackf. (Ind.) 377. b. Riot. 15. What constitutes a riot? A riot is a " tumultuous disturbance of the peace, by three or more persons assembling together of their own authority, with an intent to assist one another against any one who shall oppose them, in the execution of some enterprise of a private nature, and after- wards actually executing the same in a violent and turbulent man- ner, to the terror of the people, whether the act itself be lawful or unlawful." 1 Hawk. P. C. (8th ed.) 513, 1. The violence need not be actually inflicted upon any person. Threat- ening with weapons, or even words, is sufficient, as the disturbance of the peace, by exciting terror, is the gist of the offense. . Bell v. Mallory, 61 ill. 167; State v. Ren ton, 15 N. H. 169. c. Libel and Slander. 16. Define libel and distinguish it from slander. Libel is the " malicious publication of any writing, sign, picture, effigy or other representation tending to defame the memory of one who is dead, or the reputation of one who is living, or to expose him to ridicule, hatred or contempt." May's Grim. L. (2d ed.), 172. Libel differs from slander only in that the latter consists entirely of verbal expressions. Both are punished criminally on. account of their tendency to lead to a breach of the peace. 1 Hawk. P. C. (8th ed.). 542, 3; People v. Croswell, 3 Johns. Cas. (N. Y.) 337. The publication need not be malicious in the ordinary acceptance of the word. If the act is done wilfully, the malice is presumed, as mat- ter ot law, from the publication. Commonwealth v. Snelling, 15 Pick. (Mass.) 321. CRIMINAL LA\$T. 159 The truth of the libelous matter is no defense to a criminal prosecu- tion, as it is in a civil suit. On the contrary, the old common-law maxim was " the greater the truth, the greater the libel," the danger of a disturbance of the public peace being the thing considered. This common-law rule has been modified by statutes in a number of the States, however; and in practically all of the States truth is a de- fense, if the matter was published for a justifiable end, and with good motives. May's Crim. L. (2d ed.), 173. The placing of libelous matter where it may be seen by one or more persons, other than the publisher, is a publication, and the act is in- dictable, whether or not the matter is seen. Giles v. State, 6 Ga. 276. And also whether or not the matter, as seen, is understood, as where it is in a foreign language. Haase v. State, 20 Atl. Rep. (N. J.) 751. Privileged communications are not libelous, but they cannot be used as a cloak for personal attack, as in the case of a criticism of a book. Carr v. Hood, 1 Camp. 354, note. d. Nuisance. 17. Define nuisance. Nuisance to be punishable as a crime must be something which causes inconvenience or injury to the public. That is injurious " which substantially interferes with the free exercise of a public right, which shocks or corrupts the public morals or injures the public health." May's Grim. L. (2d ed.), 178. Acts of omis- sion may equally well be nuisances as acts of commission. 4 Shars. Black. Com. 166, 5. Certain acts are nuisances, per se, as obstruction of public roads, or navigable waters, pollution of streams or corruption of public morals, because they violate the public right and welfare. Knox v. N. Y. City, 55 Barb. 404; State v. Taylor, 29 Ind. 517. Other acts, however, are nuisances or not, according 10 the attendant circumstances. Refineries or slaughter-houses may be nuisances in some localities, and perfectly permissible in others. Commonwealth v. Miller, 139 Penn. St 77; Ballentine v. Webb, 84 Mich. 38. It may also well happen, that an act which was not a nuisance at one time will become so by the in- crease of population or other change of surroundings. Commonwealth v. Upton, 6 Gray (Mass.), 473. The lapse of time never gives a pre- scriptive right against the State to maintain a nuisance. The Statute of Limitations does not run against the State, n,or is it any defense that similar nuisances have been tolerated. Commonwealth v. Perry, 139 Mass. 198. e. Conspiracy. 18. Define conspiracy. Conspiracy is " an agreement to do, against the rights of an- other, an unlawful act, or to use unlawful means " (to do any act). May's Trim. L. (2d ed.). 186-187, and cases cited. The agree- ment may be indictable as conspiracy, though the thing to be done 160 QUESTIONS AND ANSWERS. is not criminal, nor even indictable. State v. Mayberry, 48 Me. 218; State v. Rowley. 12 Conn. 101. It may be, however, that some unlawful acts are too frivolous to support an indictment for conspiracy, but there is no rule which can be used as a guide. Begina v. Kenrick, L. R. 5 Q. B. Rep. 49, 62. The gist of the offense is the agreement, on the ground that the organization for unlawful purposes is the dangerous thing. When the agreement is made, therefore, the crime is complete, though no offense Is actually committed. United States v. Cole, 5 McLean C.'O. 513, 611; State v. Noyes, 25 Vt 415. A man cannot be a conspirator, however, without an actual wrongful Intent. For instance, a man cannot be deceived into being a conspira- tor. Rex v. Whitehead, 1 Car. & P. 67. 19. A. and B., as the result of a conspiracy, commit a felony. May they be punished for both the conspiracy and the crime as separate offenses? Suppose they had committed a misdemeanor? In the case of the commission of a felony the conspiracy merges and is punishable as part of the felony. State v. Noyes, 25 Vt. 415, 421; Commonwealth v. Kingsbury, 5 Mass. 106. But see, contra, State v. Mayberry, 48 Me. 218, 238. In the case of a misdemeanor, however, there is no merger, and the conspiracy is punished separately. People v. Richards, 1 Mich. 216; State v. Murray, 15 Me. 100. IV. OFFENSES AGAINST THE PERSON. a. Assault and Battery. See Torts, Ques. 7-9. b. Mayhem. 20. Define mayhem. Mayhem is denned by Blackstone as " the violently depriving another of the use of such of his members as may render him the less able in fighting, either to defend himself or to annoy his ad- versary." Thus, at common law, an injury which tended only to disfigure, but not to weaken, was not mayhem, as the cutting off of an ear. 4 Shars. Black. Com. 205. The offense is now, however, almost universally defined by statute, and in many cases disfigurement is included, which would not have come within the common-law definition. Under the New York statute, the act must be premeditated and " of purpose." Godfrey v. People, 63 N. Y. 207. In North Carolina, however, a preconceived intention to disfigure need not be proved. A prima facie case is made by the proof of the disfigurement State v. Girkin, 1 Ired. 121. CRIMINAL LAW. 161 c. Homicide. 21. Define homicide and give its different degrees. Homicide is the killing of a human being. It may be justifi- able, as an execution by a sheriff, or a necessary killing to prevent the commission of a threatened crime of a violent nature; U. S. v. Wiltberger, 3 "\Vash. C. C. 515; or it may be excusable, as when done in the protection of one's person. In such cases no crime has been committed. Homicide, as a crime, is either murder or manslaughter, the former being homicide with malice aforethought, and the latter without such malice, as where one kills another in the heat of pas- sion, or upon great provocation. Commonwealth v. Webster, 5 Cush. (Mass.) 295, 305; Maria v. State, 28 Tex. 98. Manslaughter may be voluntary or involuntary, according as the act is committed with the design to kill, or results from some un- lawful act, but without the intention of taking life. May's Grim. L. (2d ed.), 226. At common law there were no degrees of murder or manslaugh- ter, but statutes have been universally passed making the punish- ment less severe, where there are mitigating circumstances. 22. A., having determined to kill B., sends him poison, which is taken by C. through mistake. How should the judge charge the jury? He should charge the jury, that if such facts were found there was conclusive evidence of malice aforethought, the use of poison showing necessary preparation; and that the malice against B. would be imputed to the act so as to make A. guilty of the murder of C., though he might have been his best friend. Saunders's Case, 2 Plow. 473; McGehee v.* State, 62 Miss. 772. A jury should also generally be charged that the premeditation which constitutes malice aforethought need not be extended over any lengthy period of time. It is enough that the purpose should have been completely entertained for however short a period before its execution. People v. Williams, 43 Cal. 344, 351; Shoemaker v. State, 12 Ohio St. 43, 52. Neither need a personal enmity be shown to prove malice. It will be implied by law, when the act is done without provo- cation, or in a deliberately reckless or careless manner. 4 Shars. Bl. Com. 1GS-200. 23. What will constitute such a provocation for homicide as to reduce the degree of the offense to manslaughter? The degree of the offense will be reduced when the offender suf- fered such treatment from the one killed as would have aroused a high degree of passion in a man possessing ordinary self-control. Xo words, however, will be sufficient, nor any trespass upon land 11 QUESTIONS AND ANSWERS. or goods. And no provocation, however great, will reduce the de- gree of the offense, unless the act of killing is done under the influence of the passion produced by that provocation. May's Crim. L.. (2d ed.), 227-228. When resisting unlawful arrest, however, it has been held in some States, that the taking of life would only be manslaughter, though the ace was deliberate and unnecessary, and not done in the heat of passion. Commonwealth v. Carey, 12 Cush. (Mass.) 246; Rafferty v. People, 69 111. Ill, 115. This doctrine, however, is not universally approved. Galvin v. State, 6 Cold. (Tenn.) 283, 291; Roberts v. State, 14 Mo. 138, 146. 24. A. died of certain injuries inflicted by B., who showed on the trial that the injuries would not have been fatal had they been properly treated. Will such evidence help him? No. The offender is not to be excused in a criminal prosecution because the effects of his wrong might have been avoided. Bowles v. State, 58 Ala. 335; Kee v. State, 28 Ark. 155, 163. 25. A. inflicted injuries upon B., of which he died after two years. Would A. be guilty of murder or manslaughter? He would be guilty of neither. The injuries must be the proxi- mate cause of the death, and it is held that such is not the case, un- less death follows within a year and a day after the injuries. State v. Shepherd, 8 Ired. (N. C.) 195; People v. Kelly, 6 Cal. 210. The time limit is generally covered by statute, however. 26. A. drives his wife out of the house, and she dies of ex- posure. Is he guilty of homicide? If she left the house from fear of death or great bodily harm and her fears were well-grounded or reasonable, and her death was the natural and probable consequence of leaving the house at the time and under the circumstances he is guilty. The doing of any act which will naturally lead to death is mur- der or manslaughter, according to the intention with which it is done. Hendrickson v. Commonwealth, 85 Ky. 281, 286. Crimi- nal carelessness or neglect of a duty may also result in murder as well as affirmative acts of violence. State v. O'Brien, 32 N. J. Law, 169; State v. Hoit, 23 N. H. 355. As to homicide in self-defense, see Torts, Ques. 21a. d. False Imprisonment. See Torts, Ques. 37, 38. e. Rapa. 27. Define rape. Rape is the unlawful carnal knowledge of a woman without her consent. The act must be accomplished with force and be met CRIMINAL LAW. 16 3 with such resistance as to negative the idea of consent. Fraud will not take the place of force, and if there is consent, however ob- tained, the crime is not rape, if the woman knows to what she is consenting. McXair v. State, 53 Ala. 453. Where, however, the consent is obtained under pretext of medical treatment, the offense is rape. Regina v. Case, 4 Cox C. C. 220, 223. But see Don Moran v. People, 25 Mich. 356, contra. The force which will negative the idea of consent may be very slight or practically absent, if the woman is not capable of resisting on account of being insensible or asleep. Commonwealth v. Burke, 105 Mass. 376; Regina v. Mayers, 12 Cox C. C. 311. f. Kobbery. 28. Define robbery. Robbery is larceny from the person or personal presence and protection, with the added element that the crime is executed by force or by putting in fear. Commonwealth v. Humphries, 7 Mass. 242; Commonwealth v. Holland, 1 Duv. (Ky.) 182. The force or fear must be the means by which the crime is accomplished, and must be prior to or simultaneous with it. Thomas v. State, 91 Ala. 34. It is also necessary that the force be used with the intention of accomplishing the larceny. Regina v. Edwards, 1 Cox C. C. 32. For the general principles of larceny, see infra, Ques. 37 et seq. V. OFFENSES AGAINST THE DWELLING-HOUSE. a. Arson. 29. Define arson. Arson is the malicious burning of another's dwelling-house. May's Crim. L. (2d ed.), 250. 30. A. sets fire to his own house when B.'s house was so near that the fire would naturally spread to it. If B.'s house burns, is A. guilty of arson? Yes. Simply burning one's own house is no offense at common law, if innocent Bloss v. Tobey, 2 Pick. (Mass.) 320; but where the destruction of B.'s house is a result which would naturally follow from, A.'s act, he is guilty of arson. Rex v. Isaac, 2 East P. C. 1031. The only malice necessary is an intention to burn. Thus, the crime is complete, when one intending to burn A.'s house sets fire to B.'s house by mistake. 1 Hale, P. C. 569; May's Crim. L. (2d ed.), 254. 31. A. intentionally burns the house of which he is lessee. Is he guilty of arson? No. For the purposes of the crime, a man is burning his own house, if he has the right of present possession. He need not be the holder of the title; it is enough that he is the rightful occu- QUESTIONS AND ANSWERS. pant, as the gist of the offense is the violation of the sanctity of another's abode. State v. Lyon, 12 Conn. 487; McXeal v. Woods, 3 Blackf. (Ind.) 485, 486; State v. Toole, 29 Conn. 342. By statute, however, in some States, the wilful burning of any build- ing is made punishable, whether the act be committed by the owner or not State v. Hurd, 51 N. H. 176; Shepherd v. People, 19 N. Y. 537. 32. A. sets fire to a stable in which the coachman lives. What is the offense? The offense is arson. Any building is a dwelling-house, within the definition of the offense, which is actually occupied as such, though it may not have been erected for that purpose, and may also be used for other purposes, as for a jail. People v. Cotteral; 18 Johns. (N. Y.) 115, 120; Smith v. State, 23 Tex. App. 357. But compare Jenkins v. State, 53 Ga. 33, where it is said that there is no intention to burn the jail, but to burn a hole, through which to escape. The occupant need not be actually in the building when it is set on fire, but it must be, in a real sense, occupied. State v. Toole, 29 Conn. 342. Mere ownership, though combined with the intention to occupy, is not enough. . Hoouer v. Commonwealth, 13 Gratt. (Va.) 763; State v. TVarren, 33 Me. 30. The burning necessary for arson must be an actual combustion. It Is sufficient if the wood be charred, though not enough, if only scorched. May's Crim. L. (2d ed.), 255. b. Burglary. 33. Define burglary. Burglary is the breaking and entering of another's dwelling- house in the night-time, with the intent to commit a felony therein, whether the felonious intent be executed or not. 1 Hawk. P. C. (8th ed.), 129. 34. A., finding the shutters and window of B.'s house open, enters to commit a felony. Finding the door of an inner room locked, he breaks it open. Would this be a sufficient breaking to make the offense burglary? Yes. The breaking of an inner door, even after entry into the house, is sufficient for the offense. State v. Scripture, 42 N. H. 485; Holland v. Commonwealth, 85 Penn. St. 66, 71. It would not be burglary, however, if A. had simply broken open a chest, cup- board, clothes-press, or other movable piece of furniture not part of the house. State v. Wilson, Coxe (X. J.), 439. The mere entering through the open window, was not a breaking. To constitute burglary, the breaking must be actual. Very little force is CRIMINAL LAW. 165 required, however, and sliding a bolt or tearing a netting which cov- ered an open window is sufficient. State v. O'Brien, 81 Iowa, 93; Com- monwealth v. Stephenson, 8 Pick. 354. But the window or door must not be so carelessly left open, as to invite an^ntry, and it would be held to be such an invitation if the window had been left only slightly- open, so that it must be pushed farther up to admit of entry. Com- monwealth v. Strupney, 105 Mass. 588; McGrath v. State, 25 Neb. 780. A breaking out of the house, however, to escape, would, probably, not be held burglary anywhere. May's Crim. L. (2d ed.), 262. There may also be a constructive breaking, where fraud, or threats are substituted for force. Entry by conspiracy with persons within the house is burglary. State v. Howe, 98 N. C. 629. 35. After opening a window, A. obtains possession of goods by means of a long hook. Has there been an entry of the building? Yes. When the hand or any implement passes within, for the purpose of committing the intended felony, there is an entry. It is not enough, however, if the implement is simply used for the purpose of breaking. May's Crim. L. (2d ed.), 263. 36. A. breaks into B.'s house at four o'clock p. m., with the in- tention of examining some private documents of B.'s. Would the offense be burglary? Xo. The offensa would not be burglary for two reasons: First, the breaking must be in the night-time to constitute burglary that is, broadly speaking, from sunset to sunrise, though some States have fixed the time differently by statute. In Massachu- setts " night-time " is denned to be from one hour after sunset to one hour before sunrise. Commonwealth v. Williams, 2 Gush. (Mass.) 582, 589. Second, to constitute burglary the breaking must be with the intent to commit a felony, and an intent to commit a misdemeanor will not be sufficient. Thus, if one break and enter with the in- tent to commit adultery, the offense would or would not be burglary, according as the jurisdiction might hold adultery to be a felony, misdemeanor or. as in some States, no crime at all. State v. Cooper, 16 Yt. 551; Commonwealth v. Newell, 7 Mass. 245. The crime of burglary has been very generally extended, frequently covering offenses committed by day as well as by night, and in most jurisdictions it is a crime to break and enter any building, for the purpose of committing a felony therein. May's Ci*im. L. (2d. ed.), 268. The question of what constitutes a dwelling-house is the same in burglary as in arson. See ante, Ques. 32. 166 QUESTIONS AND ANSWERS. VI. OFFENSES AGAINST PROPERTY. a. Larceny. 37. Define larcenm. Larceny is the unlawful taking possession of the personal prop- erty of another, with the intent to steal. 4 Shars. Black. Com. 229. 38. A., intending to steal a bag of flour, puts it on his shoulder, but is caught before he has moved -away. Has there been a sufficient taking possession of the flour to constitute lar- ceny? Suppose he had only stood the bag on end? The taking possession must be actual so that the thief has the real possession and control, but his possession need only be for an instant, and there would be a sufficient taking of possession where the bag was put upon the shoulder. State v. Craig, 89 N. C. 475; State v. Gazell, 30 Mo. 92; Rex v. Walsh, 1 Moody Cr. C. 14; Rex v. Pitman, 2 Car. & P. 423. So, If money in a person's pocket be actually lifted in the hand of a thief, the taking possession is sufficient, even though the money is dropped again and never actually removed from the pocket Harrison v. People, 50 N. Y. 518; Eckles v. State, 29 Ohio St. 508. Where, however, the bag is only set on end, preparatory to taking away, there is not such a taking possession as will constitute lar- ceny. State v. Jones, 65 N. C. 395. 39. A., by a fraudulent representation, has the possession of certain goods given to him. Is he guilty of larceny? Yes. Though possession here is actually given, it is held that the fraud which induced the giving of possession is equivalent to the trespass which is usually necessary to constitute the crime of larceny. The offense is recognized as larceny by trick. Regica v. Bunce, 1 Fost. & F. 523; Eegina v. Buckmaster, 16 Cox C. C. 339. Where, however, the fraud lends the owner to confer title upon the thief, his taking of possession is not larceny. If the owner intended to pass title, and the thief intended to take it, no fraud will prevent its passing, as it is simply a question of intention, and when title has been given, the holder cannot be regarded as committing larceny, when he takes possession. His own goods cannot be the object of his tres- pass. 2 Bishop on Criminal Law (7th ed.), 808-812. 40. A. asks to examine a watch, which is handed over the counter to him, and he runs off with it. Was he given posses- sion so that the offense is not larceny? No. There is a distinction to be noted between possession and mere custody. Where the owner of property hands it to another CRIMINAL LAW. 167 for a specific purpose to be carried out under the owner's own in- spection, possession does not pass, but mere custody, and the owner still has possession. When the thief ran, therefore, the pos- session was taken and the offense was larceny. People v. Call, 1 Den. (N. Y.) 120; Commonwealth v. O'Malley, 97 Haas. 584. 41. A. leaves part of his goods ivith his servant and others u'ith a bailee. Both appropriate the goods. Are both offenses larceny? Xo. Only the servant has committed larceny. The delivery of goods to a bailee passes possession, but owing, probably, to the his- torical idea of slaves, it is held that when a master gives property to his sen-ant, the latter only obtains custody, and that possession is still in the master, and, therefore, the taking by the servant is a taking of possession, and so is larceny. Commonwealth v. Berry, 99 Mass. 428; People v. Belden, 37 Cal. 51. If, however, the servant is given goods by a third person for his master, he does get possession, and an appropration by him Is not larceny. Regina v. Masters, 1 Den. Cr. Cas. 332. One servant, however, who has only custody, cannot give possession to a fellow-servant. Only custody passes. Rex v. Murray, 1 Moody Cr. Cas. 276; May's Crim. L. (2d ed.),, 283. 42. A. finds a bag in the road, which has been dropped from a, wagon, to which a tag is attached. He tears off the tag with- out looking for the name and appropriates the bag. Is the act larceny? Suppose there had been no tag? The taking of the bag, with the tag attached, would be larceny. In spite of the fact that the bag was actually lost, when a finder takes possession of an article with a clue to it, and with the inten- tion to appropriate it regardless of the fact that the owner might be found, it is held to be a taking within the definition of larceny. Reed v. State, 8 Tex. App. 40; Commonwealth v. Titus, 116 Mass. 42. If there had been no tag, the bag would have been without clue, . and the act would not have been criminal. Regina v. Thurborn, 1 Den. Cr. Cas. 387. 43. A storekeeper finds a purse upon his counter, which has been left by mistake. A thorough examination of it, however, fails to reveal the identity of its owner. Is his appropriation larceny? Yes. In such a case the property cannot be treated as lost, for at the time of appropriation there was a probability, known to the 168 QUESTIONS AND ANSWERS. offender, that the owner would return and claim the purse. Law- rence v. State, 1 Humph. (Tenn.) 228; Regina v. West, 6 Cox C. d 415. In every case, however, the intention to appropriate must be present at the time of finding, otherwise there is no wrongful taking of pos- session. Baker v. State, 29 Ohio St 184; Reed v. State, 8 Tex. App. 40. 44. Define personal property within the meaning of the defini- tion of larceny. Personal property means such property as may be described as " goods and chattels." As soon as property becomes a chattel, and as long as it remains so, it is the subject of larceny. Thus, milking a cow, shearing a sheep, or taking turpentine from a tree may be larceny. State v. Moore, 11 Ired. (N. 0.) 70. A dead body is not considered property, though gravecloth.es are. 2 East P. C. 65i; Wonson v. Sayward, 13 Pick. (Mass.) 402. Deeds, promissory notes, and such papers were held not to be subjects of larceny at common law. Their character, as a chattel, was considered to be merged in their more important character of written obligations- Payne v. People, 6 Johns. (N. Y.) 103; U. S. v. Davis, 5 Mason C. C. 356. When, however, the written obligation is inope- rative, as a canceled check, it is then mere paper, and, therefore, a subject of larceny. Eegina v. Watts, 4 Cox C. C. 336. The com- mon-law rule has been modified by statute, however, in almost every jurisdiction, and written instruments are regularly consid- ered subjects of larceny. May's Grim. L. (2d ed.), 272. By the very definition of the offense, the subject of larceny must be a chattel, and so there can be no larceny of real estate. Rex v. Webster, 1 Leach C. C. (4th ed.) 12. When, however, portions of the realty are severed so as to become chattels, they become sub- jects of larceny after they have once come into the possession of the owner. If, however, the severance and the taking away constitute one and the same act, the offense is only a trespass, as the owner has never had possession of the chattel. State v. Hall, 5 Harr. (Del.) 492; Regina v. Townley, 12 Cox C. C. 59. Wild animals, in a state of nature, are not subjects of larceny,, though they may be when shot and reduced into possession. Dogs, cats and the like were not considered property under the common law, and are not to-day subjects of larceny in this country, except by statute. 4 Shars. Black. Com. 236; Ward v. State, 48 Ala. 161. The chatte). to be the subject of larceny must also have some value, or it cannot be regarded as property. The value may be trifling, but must be appreciable. Payne v. People, 6 Johns. (N. Y.) 103; People v. Wiley, 3 Hill (N. Y.), 194, 211. CRIMINAL LAW. 169 45. A. owns property which, however, has been attached for the benefit of a creditor. A. takes the property away with intent to deprive the creditor of his lien. What is the offense? The offense is larceny. A. had no right to the possession of the property, and for certain purposes the property was that of the at- taching creditor. Commonwealth v. Greene, 111 Mass, 392; Peo- ple v. Thompson, 34 Cal. 671. 46. A. takes goods from her husband's house previous to elop- ing with another man. Is the offense larceny? No. By the common-law principles a wife cannot have posses- sion of property apart from her husband; in law they are one person. Regina v. Kenny, 2 Q. B. Div. 307; Rex v. Wills, 1 Moody, Cr. C. 375. 47. A. takes B.'s hat for the purpose of inducing B. to follow him. Is the offense larceny? No. By the definition, the taking of the property must be with the intent to steal, i. e.,- to permanently deprive the possessor of property or of his interest in it. If the purpose of the offender i& only to make a temporary use of the chattel, the offense is not lar- ceny. Rex v. Dickinson, Russ. & Ry. 420. But taking prop- erty with the intent to keep it until a reward is offered is larceny. Berry y. State, 31 Ohio St. 219; Commonwealth v. Mason, 105 Mass. 163. It Is also necessary that the Intent to steal be present at the time of taking, as in the case of finding goods (see Ques. 43, supra), other- wise there is no larceny. A taking without a fraudulent intent, and a fraudulent conversion afterwards, will not, in general, constitute lar- ceny. Wilson v. People, 39 N. Y. 459; State v. Shermer, 55 Mo. 83. In some cases, however, it has been held, that while, if the original taking be rightful, a fraudulent conversion later will not be larceny, yet if the original taking be wrongful, as by trespass, it will be, though the wrong did not consist in an intent to steal. Commonwealth v. White, 11 Cush. (Mass.) 483; State v. Coombs, 55 Me. 477. 48. A., on trial for larceny, shows that the goods which he took were of no advantage to him, and were not taken with the expectation of personal gain. Is that a defense? No. Though it was once laid down that such an offense was more properly malicious mischief, it is now generally held that there need be no motive of gain in order to convict of larceny. The permanent injury to the owner is sufficient. State v. Ryan, 12 Nev. 401; State v. Davis, 38 N. J. Law, 176. But see, contra, Pence v. State, 110 Ind. 95, 99; People v. Woodward, 31 Hun (N. Y.), 57. 170 QUESTIONS AND ANSWEHS. 49. Define larceny from the person and larceny from a build- ing. Larceny from the person and from a building are but aggravated forms of larceny, of statutory growth and. as far as the larceny is concerned, subject to the regular tests. Larceny from the person is a taking from the personal protec- tion, with force. The mere force of the taking is enough, and it differs from robbery in that the assault of the latter offense is prior to and in aid of the larceny. Thus, if A. scratches B.'s watch in taking it, the offense is larceny from the person; if he knocks B. down in order that he may steal his watch, the offense is robbery. Commonwealth v. Dimond, 3 Gush. (Mass.) 235; 2 Eussell on Crimes, 89. Larceny from the building is committed when the goods taken are under the protection which is supposed, by law, to be afforded them by being kept in a building. The offense of larceny from a building Is not committed, however, if the goods are under the personal protection of the owner, though they may be in a building. In such a case the goods are under the owner's protection, rather than that of the building. The house is not supposed to be a protection against every one; the owner of the house may commit larceny in it, yet the offense would not be larceny from a building. Commonwealth v. Hartnett, 3 Gray (Mass.), 450. So, also if the offense is committed by the owner's wife. Rex v. Gould, Leach C. C. (4th ed.) 217. 50. A. steals property which was owned in common by B. and C. How many offenses has he committed? Only one. There is but one act which is criminal, and that is an offense against the public, not against A. and B., as individuals. As to them it is but a trespass, and the allegation of ownership is only a matter of pleading for the purpose of identifying the prop- erty. Nichols v. Commonwealth, 78 Ky. 180; Bell v. State, 42 Ind. 335. b. Embezzlement. 51. Define embezzlement. Embezzlement is the " fraudulent appropriation of another's property bv one who has the lawful possession." The offense is purely the result of statutes which were passed to punish persons for the appropriation of property of which they had lawful posses- sion, and who could not, therefore, be convicted of larceny. The appropriation must be fraudulent, or the offense is not com- mitted. Thus, if the property is taken under the claim of right, it Is not embezzlement Ross v. Innis, 35 111. 487; Kirby v. Foster, 22 Ati. Rep. (R. I.) 1111, 1112. CRIMINAL LAW. 171 As to what property may be the subject-matter of the offense, the practical result is that whatever may be stolen may be embezzled. May's Grim. L. <2d ed.), 303. See also Ques. 44 (supra). The question of who has possession, within the meaning of the defini- tion, brings up the distinction between possession and cnstody (consid- ered under questions 38-42, supra), and also the distinction between a clerk or servant, and an agent or officer. As a general rule, a clerk and a servant only have custody of goods which are given to them b.y their master, so that an appropriation by them is larceny,' whereas, an agent or an officer, public or private, has possession, and his offense would be embezzlement. Where the line is to be drawn, however, be- tween a servant and an agent, is a very difficult question of fact, but perhaps the best test is the question of control. A master has full control over his servant, both as to what he shall do, and how he shall do it but his control over his agent does not extend to the small de- tails of how the work is accomplished. 52. A., the teller of a bank, enters the bank after hours and appropriates money from the safe. Is the offense embezzlement? No. Though a teller is an officer who would, ordinarily, have lawful possession of the money, under the definition of embezzle- ment, yet his possession only lasts during banking hours, and when in the safe the possession of the money is in the bank. Common- wealth v. Barry, 116 Mass. 1. 53. A. acts as a general commission merchant, and places all of the money which he collects for all customers in one bank account, from which he pays his own private creditors. Is he guilty of embezzlement? No. Every agent who appropriates money collected for others is not guilty of embezzlement. The very business of a commission merchant carries with it the permission, implied from the necessi- ties of the case, of using all moneys received as a general fund. Commonwealth v. Foster, 107 Mass. 221; May's Crim. L. (2d ed.), 301. Manifestly, mere failure to pay a loan can never be embezzle- ment. People v. Wadsworth, 63 'Mich. 500, 509. c. False Pretenses. 54. What are the elements of the crime of obtaining goods un- der false pretenses? To convict a man of the crime it is necessary to show: (1) That the pretense is false; (2) that there was an intent to defraud; {3) that an actual fraud was committed; (4) that the false pretenses were made for the purpose of perpetrating the fraud: and (5) that the fraud was accomplished by means of the false pretenses. Com- mon wealth v. Drew, 19 Pick.' (Mass.) 179; May's Crim. L. (2d ed.), 305. 172 QUESTIONS AND ANSWERS. ^->- The false pretense must be a false statement, regarding some past or existing fact, as distinguished from a promise, an opinion or a state- ment about an event that is to take place. Thus, the ordinary " puff- Ing " of goods by the seller is not criminal, as being a mere expression of opinion, against which the purchaser must guard. Begina v. Bryan, 7 Cox C. G. 312; State v. Estes, 46 Me. 150. The representation must be actually false. It is not enough that the man believed it to be false and intended to defraud. If the representation actually turns out to have been true, he is not guilty. State v, Asher, 50 Ark. 427. Ttye pretense must also be false at the time the ^property Is obtained. If true then, it makes no difference how false it; may have been when made. In re Snyder, 17 Kan. 542, 555. The crime is one purely of statutory creation. So many frauds were committed, which could not come within the common-law definitions of larceny, that the statute of 30 Geo. II, chap. 24, was passed making the offender indictable and statutes to the same effect are to be found in every jurisdiction, with little, if any, real difference in their pro- visions. 55. A. went to a store wearing a gown worn only by certain college students. The storekeeper gave him credit, supposing him' to be a student, though he asked no questions. Was there a sufficient pretense to constitute a crime? Yes. The pretense need not be in words; acts are sufficient, if reasonably misleading. Rex v. Barnard, 7 Car. & P. 784. The crime may also be committed when all of the statements are true, if a falsehood is implied, as where one sells goods which do not be- long to him. Eegina v. Sampson, 52 Law. T. 772; State v. Mills, 17 Me. 211. 56. A. makes a false pretense to get B/s money, and then keeps it in payment of a debt which B. justly owes him. Has he ob- tained the money by false pretenses? Xo. The second point of the definition (Ques. 54, supra] is not present. There is no intent to defraud 1 in the criminal sense, aa the money was justly due him. People, v. Thomas, 3 Hill (N\ Y.), 169; Rex v. Williams, 7 Car. & P. 354. 57. A. obtains a promissory note from B., a minor, by false pretenses. Is his act criminal? No. There has been no fraud actually perpetrated; as the minor is not bound to pay the note, it is, 'therefore, not considered as property. Commonwealth v. Lancaster, Thatch. Cr. Cas. (Mass.) 458. CRIMINAL LAW. 173 58. A. and B. both make false pretenses in exchanging watches. How is the case to be dealt with? Both are indictable, and neither can defend on the ground of the deceit of the other. Commonwealth v. Merrill, 8 Cush. (Mass.) 571, 572. It is held In New York, however, that where money Is paid to a pre- tended officer not to serve a warrant, the indictment will not lie. McCord v. People, 46 N. Y. 470. This goes on the ground that the object 01 the law is to protect the honest, while the better view is that " the law is for the protection of al-1, by the punishment of rogues." May's rim. L. (2d. ed.), 312. 59. A. obtains B.'s property by false pretenses, which, however, were so obviously false that B. would not have been deceived, but for extreme negligence. Can A. defend on that ground? No. It was once generally the law, as expressed by Lord Holt, that one man is not to be indicted because another has been a fool. Regina v. Jones, 2 Ld. Raym. 1013. At present, however, it is generally held that if the pretense actually causes the man to part with his property, the offense is complete regardless of his lack of caution. The act is equally criminal Avhether or not it is easy of perpetration. Cowen v. People, 14 111. 348, 349, 350; State V. Mills, 17 Me. 211, 218. 60. A. obtained property from B. upon representations, some of which were false and others true. Under what circumstances can he be convicted? The false pretense need not be the only inducement. B. would be convicted if the fraud would not have been accomplished but for the false pretense. People v. Haynes, 11 Wend. (X. Y.) 557, 567; s. c., 14 id. 546, 555; Foy v. Commonwealth, 28 Gratt. (Va.) 912, 917. The pretense must be reasonably near, however. Thus, where a man obtained admission to a race by false pretenses and won a prize, he was held not to be guilty of obtaining the prize by false pretenses. 61. What kind of property may be obtained under false pre- .tenses ? In general, the property must be such as is the subject of larceny. For example, the obtaining of credit is not generally within the statutes. Regina v. Kagleton, Dears. 515, 537. The particular statute of the jurisdiction must control, however. The property must have b<*on actually obtained by the pretense. If the false pretense is simply. used to keep the possession of property, 174 QUESTIONS AND ANSWERS. which has been legally obtained, the offense is not committed. People v. Haynes, 14 Wend. (N. Y.) 546, 563. It is very serviceable for the student to keep clearly in mind the distinctions by which the offenses which have Just been considered, shade from one to the other. (1) In larceny the offender takes posses- sion from the one rightfully in possession, with at least some techni- cal force, and, of course, gets no title.. (2) In larceny by trick, the person rightfully in possession is induced by fraud to give up pos- session, but not title. (3) In obtaining property under false pre- tenses the person rightfully in possession is induced by fraud to give up both possession and title. (4) . In embezzlement the pos- session is originally in the offender, and he appropriates the prop- erty to his own use. Thus, in (1) possession is taken without title; in (2) possession is given without title; in (3) both possession and title are given; and in (4) possession is in the offender from the start. d. Receiving Stolen Goods. 62. When is a man guilty of receiving stolen goods? When he receives into his possession goods of another, knowing them to be stolen, with a fraudulent intent to deprive the person rightfiilly entitled to possession, of his interest in them. People v. Johnson, 1 Park. Cr. (N. Y.) 564; Eice v. State, 3 Heisk. (Tenn.) 215. The possession received need not be actual, manual possession, but must be equivalent to constructive possession. State v. St. Clair, 17 Iowa, 149; Regina v. Wiley, 4 Cox C. C. 412. If one finds property, which he has good reason to believe was stolen, and appropriates it, he may even then be convicted of receiving stolen goods. Common- wealth v. Moreland, 27 (Old Series), Pitts. D. J. (Penn.), p. 217, No. 45. It is always enough if the receiver of goods has reasonable grounds for believing that the goods were stolen; and if he knows the facts of the case it is not necessary that he should know that they were such as would, in law, constitute larceny. But if he believed that the circum- stances constituted no crime at all, the receiver cannot be convicted. Commonwealth v. Leonard, 140 Mass. 473. e. Forgery. 63. Define forgery. Forgery is " the fraudulent making or altering of a writing to the prejudice of another man's right." 4 Black. Com. 247. The word "writing " includes both printed and engraved matter. Com- monwealth v. Ray, 3 Gray (Mass.), 441. But not a painting, with the name of the artist falsely signed. Regina v. Gloss, 7 Cox C. C. 494. As appears by the definition, the altering of an instrument may be forgery, as well as the making of it, but the alteration must be ma- CEIMINAL LAW. 175 terial, as the change of the name of a party ta negotiable paper, or an erasure, by which the instrument is changed. State v. Robinson, 1 Harr. (N. J.) 507; State v. Stratton, 27 Iowa. 420. So also the altera- ' tion of an entry in a book, or the making of a false entry, or even the filling in of a blank, to "defraud an employer, is forgery. Biles v. Commonwealth, 32 Penn. St. 529; People v. Dickie, 17 N. Y. Supp. 51. The intent to defraud is, of course, necessary to the offense, as appears by the definition. Pauli v. Commonwealth, 89 Penn. St. 432. And when such intent exists it is immaterial that the forged signature bears no resemblance to the genuine one; and if the in- tent does not exist, it makes no t diff erence how close the resem- blance is. Commonwealth v. Goodenough, Thatch. Cr. Cas. (Mass.) 132. . 64. A. finds a will which was executed without witnesses, and changes it so as to make himself sole legatee. Is he guilty of forgery? No. If the instrument has no legal force, as here, the alteration is not forgery. State v. Smith, 8 Yerg. (Tenn.) 150; Cunningham v. People, 4 Hun (N. Y.), 455. See also State v. Anderson, 30 La. Ann. 557. 65. A., knowing that his name is the same 'as that of another man, signs a promissory note intending to pass it off as the note of the other. Is the act forgery ? Yes. A man may no,* use his own name for fraudulent pur- poses. People v. Peacock, 6 Cow. (N". Y.) 72; Commonwealth v. Foster, 114 Mass. 311. The forged name may also be that of a fictitious person, or of one deceased. Sasser v. State, 13 'Ohio St. 453, 485; Henderson v. State, 14 Tex. 503. 66. A. forges a bill in New York and sends it to the drawee in Maine. Where has the forgery been uttered? The forgery would seem to be uttered in both jurisdictions. Regina v. Finkelstein, 16 Cox C. C. 107. VII. CRIMINAL PROCEDURE. 67. How is an accusation made? The formal accusation may be made in three ways by indict- ment, by information, or by complaint. A complaint is an accusa- tion by a private person, under oath, and is generally allowed only in cases of small misdemeanors. An information is an accusation by the attorney-general, under his own oath, and is" not a! common form of procedure. The usual form of accusation is by indictment, which is found by the grand jury upon oath. May's Grim. L. (2d. ed.), 90. "1-76 QUESTIONS AXD ANSWERS. 68. What is the grand jury and what are its duties? The grand jury is a body of at least twelve, and not more than twenty-three men. Its meetings are attended only by witnesses and the public prosecuting attorney, and its principal duty is to pass upon the formal written charges presented by the pros- ecution. The evidence for the prosecution is heard, and if twelve jurors find that there are reasonable grounds for believing that the charge stated in the bill is true, the words " true bill " are in- dorsed upon it, and certified by the foreman. Such bills are handed to the clerk, and are called indictments. Besides the bills prepared by the prosecuting attorney, the grand jury may inquire into matters wliich come to their knowledge in considering other matters or through the personal knowledge of some member of the jury. May's Grim. L. (2d ed.), 91; McCul- lough v. Commonwealth, 67 Penn. St. 30. * 69. What are the requisites of an indictment? The indictment must set forth the crime of which the defend- ant is accused fully, plainly, substantially and formally. It must describe the facts which constitute the crime without ambiguity. The language is immaterial except where- it must contain certain formal words, as feloniously, with malice aforethought, etc. The facts, if true, must necessarily import a crime, and all of the ele- ments of the crime charged must be set forth, as specific intent in murder. The indictment must also be so particular in its fram- ing, as to furnish sufficient information and particulars to enable the accused to prepare his defense properly, and it must be suffi- ciently precise to protect him from a second prosecution. And even where the State goes farther than is necessary in particularizing, it must prove every material allegation to insure conviction. Thus, if an indictment alleges that the accused suborned J. S. of W. to commit perjury, it is not enough to show that he suborned J. S. of X., though the indictment would have been good if the residence of J. S. had not been alleged at all. Commonwealth v. Stone, 152 Mass. 498. The indictment must, of course, show jurisdiction and venue; i. e., that the act was against the peace of the sovereignty which is instituting the prosecution, and that the court in which the in- dictment is found also has jurisdiction. The indictment must state the name of the accused, with such accuracy that there can be no doubt as to who is meant; otherwise he could not avail himself of a former judgment, if he were prose- cuted a second time. Commonwealth v. Perkins, 1 Pick. (Mass.) 388. The time and place of the offense must also be stated, though neither need be proved precisely as alleged, unless they are material to the offense, as in the violation of a Sunday law, or in burglary. State v. Caverly, 51 N. H. 44fi; Rex v. Napper, 1 Moodv Cr. C. 44; Mfly's Crim. L.' (2d ed.), 98-116; Stark. Crim. ?1. (1st Am. ed.), chap. V. CRIMINAL LAW. 177 70. What is the accurate meaning of the rule that a man shall not be twice put in jeopardy of life or limb- for the same of- fense? . The rule means that where a man has once been indicted, put on trial in a court of competent jurisdiction, tried and acquitted, or convicted and sentenced, and has acquiesced in the punishment in part or in whole, he can plead the judgment as an absolute bar to another action for the same offense, even if the first indictment was insufficient and the proceedings irregular. Commonwealth v. .Land, 3 Mete. (Mass.) 328; Ex parte Lange, 18 Wall. (U. S.) 163. This is an ancient rule of the common law, which has, however, found its way into the Federal Constitution, and into those of most or all of the States. It has been argued from the words " jeopardy of life or limb," that where such words are used the rule is applicable only in cases of such crimes as are punished by injury to life or limb, but it is universally held, that the rule is applicable to all grades of offenses. Bryans v. State, 34 Ga. 323; Ferris v. People, 48 Barb. (N. Y.) 17. If, however, the act actually constitutes two different offenses, there may be punishment for each. State v. Innes, 53 Me. 536; Commonwealth v. McShane, 110 Mass. 502. So firmly Is this rule established, that a second prosecution is not possible, even though the acquittal of the accused was due to the judge's mistake .of law. or the jury's disregard of fact. If the accused, however, be convicted by an error of the judge or misconduct on the part of the jury, the verdict may be set aside at his request. The trial is then regarded as not completed, so that the accused may again sit at the bar. Com m on wealth, v. Sholes, 13 Allen (Mass.), 554. The rule, however, does not protect from prosecution by another sovereignty, where the same .act is a violation of the laws of both, as a conviction can have no ?xtra -tprritorial effect. United States v. Amy, 14 Md. 149, note, 152; State v. Brown, 1 Hayw. (X. C.) 100. 71. What is meant by the " same offense " in the above rule? " To entitle the defendant to this plea, it is necessary, that the crime charged be precisely the same; if the crimes charged in the former and present prosecution are so distinct, that evidence of the one will not support the other, it is inconsistent with reason, as it is repugnant to the rules of law, to say that the offenses are so far the same, that the acquittal of the one will be a bar to the pros- ecution for the other." Where the prisoner might have been con- victed on the first indictment by proof of the facts contained in the second indictment, an acquittal on the first is a bar to the second. Burns v. People, 1 Park. C. C. (X. Y.) 182; Commonwealth v. Roby, 12 Pick. (Mass.) 496. Where, however, under the first indictment, there was an acquittal for variance, in that the venue was improperly stated, or the crime 12 178 QUESTIONS AND ANSWERS. wrongly described, a new indictment will lie. The two offenses in such cases are not the same. Commonwealth v. Call, 21 Pick. (Mass.), 509; May's Crim. L. (2d ed.) ( 122. Wh*ere a person has been tried for an offense, which necessarily in- cludes others of which he might have been convicted under the first indictment, he cannot be tried a .second time for those lesser offenses. Thus, a trial and acquittal for robbery is a bar to an indictment for larceny, where property alleged to have been taken is the same. Peo- ple v. McGowan, 17 Wend. (N. Y.) 386. But on the other hand, a con- viction under an indictment for assault, with intent to kill, is no bar to an indictment for murder, as the accused has never met the second charge. See Commonwealth v. Roby 12 Pick. (Mass.) 496; Burns v. People, 1 Park. C. C. (N. Y.) 182. After an acquittal on an indictment for manslaughter, however, the accused cannot be tried for murder, as the previous acquittal neces- sarily involved a finding upon the issue of killing, whether with or without malice, in favor of the defendant. State v. Foster, 33 Iowa, 085, 526; 1 Bishop on Criminal Law, chap. 63. DAMAOES. I. NOMINAL DAMAGES. 1. Define damnum absque injuria. The phrase means the damage, pecuniary or otherwise, which a man suffers, owing to the act of another, but which act gives him no right to legal redress; e. g., where a man is damaged by trade competition, or by the proper use of water by riparian owners, or by the lawful use of his neighbor's property. The plaintiff has a right of action only when the defendant has violated some duty owed the plaintiff. Penn. Coal Co. v. Sanderson, 113 Penn. St. 126. 2. A. enters upon B.'s land by mistake and fertilizes it. Can B. recover in an action of trespass? Yes. The violation of a legal right (injuria) gives a right to damages, and B. would be entitled to nominal damages here, though he had suffered no real damage whatever, but had been actually benefited. Gile v. Stevens, 13 Gray (Mass.), 146. In the case sug- gested, such a rule is particularly necessary in order to protect titles from constant trespass. Hathorne v. Stinson, 12 Me. 183. But it applies to all kinds of actions, every injuria being held to " import damage." Ashby v. White, 2 Ld. Raym. 938, 955. Lord Holt there says: " Every injury imports a damage, though it does not cost the party one farthing." Nominal damages, however, are only granted to affirm an in- fringed right, not to compensate for any injury, and such an award is not an exception to the underlying principle of damages, that a plaintiff can only recover what he has suffered. 1 Sutherland on Damages (1st ed.), 17. II. REMOTE DAMAGES. 3. How far is a defendant liable for the remote consequences of his act? He has no responsibility for such consequences. The rule is well stated in Warwick v. Hutchinson, 45 X. J. Law, 61. " It is a fundamental principle of law applicable alike to breaches of contract of this description, and to torts, that in order to found a right of action there must be a wrongful act done, and a loss re- sulting from that wrongful act; the wrongful act must be the act 179 180 QUESTIONS AND ANSWERS. of the defendant, and the injury suffered by the plaintiff must be the natural. and not merely a remote consequence of the defend- ant's act. The wrong done and the injury sustained must bear to each other the relation of cause and effect; and the damages, whether they .arise from withholding a legal right, or the breach of a legal duty, to be recoverable, must be the natural and proxi- mate consequence of the act complained of." But to be natural, it is not necessary that the consequences be such as the defendant could foresee. They need only be of a kind which would be natural. Childress v. lourie, Meigs (Tenn.), 561. Where, moreover, another efficient cause intervenes between the de- fendant's act and the injury, the defendant is not responsible. Marble v. Worcester, 4 Gray (Mass.), 395. See also on proximate and remote cause, Torts, Ques. 66. III. PBOSPECTIVE AND PERMANENT INJURJT. 4. A. unlawfully diverts the water of a stream so as to injure t* riparian owner below. The latter sues for the permanent in- jury arising from the depreciated value of his land. What would*be the measure of his recovery? He could recover for his injury only up to the date of the suit. The court will not presume that the ..defendant will continue his unlawful conduct, after it has been so declared. The first action establishes the plaintiff's right to damages up to that time; sub- sequent "actions must be brought, if the injury continues, and no former action is a bar. Bare v. Hoffman, 79 Penn. St. 71; Uline v. N. Y. C. & H. E, E. E, Co., 101 N. Y. 98, and cases' cited. Where, however, injury results from the erection of structures, such as public works, which from their nature are to be permanent, successive suits need not be resorted to, but the entire damage will be awarded at once. Smith v. E. E. Co., 23 W. Va. 451, 453. IV. EXEMPLARY OR PUNITIVE DAMAGES. 5. Under what circumstances should exemplary or punitive damages be awarded? . Upon strict principles of law, they should never be awarded. The purpose of civil courts is not to punish defendants, but to give the plaintiff such damage as he has suffered. He is entitled to no more, and the defendant should not be required to pay more; and if lor reasons of public policy the defendant is to be punished, the infliction of such punishment is within the province of the crim- inal courts, and the fines imposed do not belong to the plaintiff. Onlv a few States, however, hold in accordance with these princi- ples; and in most jurisdictions, if a defendant acts with malice or gross negligence or wilfully, punitive damages will be given. Par- DAMAGES. 181 ker v. Shackelford, 61 Mo. 68. The general tendency of the courts, however, is to be more conservative than formerly, in allowing exemplary damages; and in Massachusetts, New Hampshire, In- diana, Nebraska and Michigan, the principle of punishing a de- fendant by giving the plaintiff more than he is entitled to has been repudiated. Boyer v. Barr, 8 Neb. 68; Stilson v. Gibbs, 53 Mich. 280, 283; Stewart v. Maddox, 63 Ind. 51, 57; Maegher v. , Driscoll, 99 Mass. 281, 285; Bixby v. Dunlap, 56 N. H. 456. Where the defendant has been culpably in the wrong, however, there is always a tendency to be more liberal in awarding damages. " The true rule, as i understand it," said Gushing, J., " is to instruct the jury, that if they find the defendant has been malicious the rule of damages will be more liberal." Bixby v. Dunlap, 56 N. H. i56, 464; Smith v. Holcomb, 99 Mass. 552. 6. Where, by statute, an action of tort survives the death of tort- feasor, may punitive damages be awarded against his executor? No. Even where the courts are most liberal in allowing puni- tive damages, they will not be allowed against the representatives of the deceased, the object of the rule being, as the courts holcl r not to compensate the plaintiff, but to punish the defendant, feheik v. Hobson, 64 Iowa, 146. T. Can a corporation be held liable for punitive damages under any circumstances? Yes. In many jurisdictions, punitive damages will be allowed against a corporation for the wrongful act of its agent, acting within the scope of his employment, when such damages could be recovered against the agent himself, even though the corporation was in no moral way responsible for the agent's act, either by original authority or ratification or through negligence in select- ing the agent. Atlantic & Great West. R. R. Co. v. Dunn, 19 Ohio St. 162 ; McKeon v. Citizens R. R. Co., 42 Mo. 79. See also Doss v. Mo., etc., R. R. Co., 59 Mo. 27. Some of the States, however, .adopt the more reasonable rule of re- fusing to allow punitive damages, except where the corporation has some moral responsibility for defendant's injury. In Cleghorn v. X. Y., etc.. R. Co., 56 N. Y. 44, 47, the court said : " For the purpose of this case, the following rule may be laid down as fairly deducible from the authorities, viz. : For injuries by the negligence of a servant, while engaged in the business of the master, within the scope of his employ- ment, the latter is liable for compensatory damages ; but for such negligence, however gross or culpable, he is not liable to be punished in punitive damages, unless he is also chargeable with gross miscon- duct." Cf. Maisenbacker v. Concordia Society, 71 Conn. 369, holding that the corporation is liable for punitive damages only when it has authorized or ratified the act of misconduct. 182 QUESTIONS AND ANSWERS. V. LIQUIDATED DAMAGES. 8. Under what circumstances may a provision in a contract for liquidated damages be enforced'/ When may a penalty be collected ? When a sum is fixed upon by the parties to a> contract as a fair measure of the damages which will be sustained by a breach of that contract, and especially when liquidated damages are agreed to, because of the nature of the contract, the uncertainty of proof of damage, or the difficulty of calculating it, the courts will enforce the provisions. Streeper v. Williams, 48 Penn. St. 450, 454. As where A. agrees to pay a fixed sum in case of failure to exchange or sell real estate. Gammon v. Howe, 14 Me. 250; Mead v. Wheeler, 13 N. H. 351. So also in a contract not to carry on a certain business. Dunlop v. Gregory, 10 X. Y. 241. Where, however, the parties merely provide for a penalty in case of nonperformance, the courts will never enforce it. " The great object of this system (compensation) is to place the plaintiif in as good a position as he would have had, if his contract had not been broken. So long as parties themselves keep this principle in view, they will be allowed to agree upon such a sum as will probably be a fair equivalent of a breach of contract. But when they go beyond this, and undertake to stipulate, not for com- pensation, but for a sum out of all proportion to the 'measure of liability which the law regards as compensator}', then the law will not allow the agreement to stand. In all agreements, therefore, fixing upon a sum in advance as the measure or limit of liability, the final question is, whether the subject of the contract is such that it violates this fundamental rule of compensation. If it does so, the sum fixed is necessarilv a penalty." Sedgwick on Damages (8th ed.), 406. The general result of the authorities has been correctly stated to be, that " when the injury is susceptible of definite admeasure- ment, as in all cases where the breach consists in the nonpayment of money, the parties will not be allowed to make a stipulation for a greater amount, whether in the form of a penalty, or of liquidated damages." Bispham's Eq. (3d ed.) 234. And cf. Equity, Ques. 15. 9. A. agrees to hare the work on a railroad bridge completed by a certain day, and to be liable for $1,000 per week as liqui- dated damages for failure to complete the icork. Is the pro- vision for damages binding? Yes. This is one of the class of cases where, from the nature of the contract, the damages cannot be computed with any degree of certainty, and the courts will enforce the payment of the stipu- lated sum as liquidated damages. Texas, etc., R. R. Co. v. Rust, 19 Fed. Rep. 239; Wolf v. Des Moines, etc., R, R. Co., 64 Iowa, 380; Curtis v. Brewer, 34 Mass. 513. DAMAGES. 183 VI. BREACHES OF CONTRACT. 10. A. and B. enter into a contract for the sale and pur- chase of real estate. What is the measure of damages in case of a failure to perform? If the vendee will not accept title when offered, the measure of damages is the difference between the price agreed to be paid for the land and the salable value of the land at the time the con- tract was broken. Old Colony R. R. Co. v. Evans, 6 Gray (Mass.), 25, 34. If the vendor conveys away title or refuses to convey to the purchaser, he also will be liable in substantial damages. Wilson v. Spencer, 11 Leigh (Va.), 261. The measure of damages in that case would be the difference between the contract price and the market value of the land at the time when the conveyance should have been made. Drake v. Baker, 34 Is. J. Law, 358. Where, however, the vendor is unable to make a good title the courts differ as to the measure of damages allowed. Some hold that the vendor is liable only for nominal damages, when he is unable to make good title through no fault of his, but hold him to substantial damages, if there is fraud. Cockroft v. N. Y., etc., R. R. Co., 69 N. Y. 201; Tracy v. Gunn, 29 Kan. 508. In several States, however, no distinction is taken, and sub- stantial damages are allowed in all cases of breach, whether arising from bad faith, or inability to convey, on the part of the vendor. The courts so holding, are Maine, Indiana, Massachusetts, Iowa, Maryland, Rhode Island, and Illinois. See Case v. Wolcott, 33 Ind. 5; Hopkins v. Lee, 6 Wheat. (U. S.) 109; 5 Am. & Eng. Ency. (1st ed.) 28, note 3, cases cited. 11. A. agrees to sell B. certain goods at a specified time and place, B. refuses to take the goods. What remedy or remedies has A.? He has a choice of three remedies: " (1) He may store or re- tain the property for the vendee, and sue him for the entire pur- chase price; (2) he may sell the property, acting as the agent, for this purpose, of the vendee, and recover the difference between the contract price and the price obtained in such resale; or (3) he may keep the property as his own, and recover the difference between the market price at the time and place of delivery, and the con- tract price." Dustan v. Me Andrew, 44 K Y. 72, 78; Ames v. Moir, 130 111. 582, 592; 2 Sedgwick on Damages (8th ed.), 750 et seq. Where there is no market at the place of delivery, evidence of the value of the goods iu the nearest market determines the question. East Tenn. R. R. Co. v. Hale. 85 Tenn. 69; Washington Ice Co. v. Webster, <>8 Me. 449, 463. The market price, however, does not always determine 184 QUESTIONS AND ANSWEES. the market value of the goods. Where there is an inflated speculative market the actual market value is the standard, and this may be ascertained by the price before or after the day of delivery. Kountz v. Kirkpatrick, 72 Penn. St. 376, 388. 12. The paintiff bought cabbage seed from defendant, which was warranted to produce " Bristol cabbages." What would be the measure of damages for a breach of the warranty? The plaintiff could recover the value of a crop of " Bristol cab- bages," such as would ordinarily have been raised that year, less the expense of raising the crop and the value of the crop actually raised. Passinger v. Thorburn, 34 N. Y. 634; White v. Miller, 78 id. 393. In such a case the profit to be, made is really the only thing purchased, and is properly made the measure of damages. Wood's Mayne on Damages, 82. 13. A. contracts to sell and deliver certain goods to B. at a fixed price. A. fails to deliver. What is the measure of dam- ages? Suppose the goods have been paid for in advance? Where the goods have not been paid for, the measure of damages is plain on principle and authority. " It is, no doubt, quite set- tled that, on a contract to supply goods of a particular sort, which at the time of the breach can be obtained in the market, the measure of damages is the difference between the contract price and the market price at the time of the breach." Blackburn, J., El- binger v. Armstrong, L. R. 9 Q. B. 473, 476. Where, however, the price has been paid in advance, the courts are divided. In some jurisdictions it is" held that the purchaser having lost the use of his money should be allowed as damages the best price he could have obtained for the property, at any time up to the time of the trial. It is considered just that as the seller alone is in fault, he should run the risk of the fluctuations. This rule obtains in California, Connecticut, Iowa, Indiana, Texas, and New York. 21 Am. & Eng. Ency. 620. Even in these jurisdictions, however, a purchaser would probably not be allowed to delay bringing a suit for an unreasonable time, in order to speculate upon the market at the expense of the; seller. Clark v. Pinney, 7 Cow. (N. Y.) 681. And in Heilbroner v, Doug- lass, 45 Tex. 402, it was held that this rule would not apply when the circumstances of the case made it inequitable. The States opposing this rule, and advocating the regular rule, based upon the market price at the time of delivery called for in the contract, are Pennsylvania, Vermont, Maine, Xew Hampshire, Illi- nois, Michigan, Colorado, Kentucky, Tennessee, Mississippi, Louis- iana. .21 Am. & Eng. Ency. 621, 622. DAMAGES. 185 > VII. PROFITS. 14. A. agreed to print show bills for B. before his arrival in town, but failed to do so, and, as a result, B.'s circus was not ad- vertised. B. sues for the profits he would naturally have made had the advertising been done. Can he recover on that basis? No. His measure of damages is the difference between the contract price for the printing and what he had to pay to effect, as far as possible, the same amount of advertising, by the means which he actually used. Great West., etc., Co. v. Tucker (Iowa), 34 N. W. Eep. 205. 15. A. agrees to employ B. as his agent for one year at a salary of $1,500, but dismisses him at the end of six months without good reasons. What would be the measure of B.'s dam- ages? A. may wait until the Expiration of the year, and then recover the entire balance of salary due, less what he has or might reason- ably have earned during that time elsewhere. Howard v. Daly, 61 N. Y. 362. He must not remain idle needlessly for the purpose of recovering the entire amount. Howard v. Daly, 61 X. Y. 362, 371. But on the other hand, he is only bound to seek like employment for the purpose of reducing damages, and cannot be required to undertake some other trade or calling. Fuchs v. Koerner (N. Y.), The Eeporter, February 1, 1888. VIII. IN T JURY TO PROPERTY. 16. A., owing to an erroneous survey, mines coal fr.om B.'s land. B. sues for the value of the coal at the mouth of the mine. Can he recover? No. The most that he could recover in any jurisdiction would be the value of the coal after severance and before it was put upon the mine cars. Blaen Avon Coal Co. v. McCulloh, 59 Md. 403; Moody v. Whitney, 38 Me. 174. See also Tilden v. Johnson, ' 52 Vt. 628. The same view is held in Xorth Carolina, California and Illinois. 5 Am. & Eng. Ency. (1st ed.) 36, note 2, cases cited. The most general rule, however, is that the plaintiff can recover only actual compensation, measured by the value of the coal in place and such other damage to the land as the mining may. have caused. That is full compensation, and does not place upon the innocent trespasser the hardship of forfeiting the cost of his labor in mining the coal. Herdic v. Young, 55 Penn. St. 176; Winchester v. Craig, 33 Mich. 205. 17. A. cut and carried away B.'s timber. What would be the measure of damages? The amount of recovery would dep'end upon the animus of the defendant. (1) Where the defendant is a wilful trespasser the 186 QUESTIONS AND ANSWERS. plaintiff may recover the full value of the property at the time and place of demand, or of suit brought, with no deduction for the de- fendant's labor or expense. (2) Where he is an unintentional or mistaken trespasser, or an innocent vendee from such trespasser, the measure of damages is the value at the time of conversion; or if the conversion sued for was after value had been added to it by the work of the defendant, the value less the cost of such improve- ment. (3) Where he is a purchaser without notice from a wilful trespasser, the value at the time of such purchase. Woodenware Co. v. U. S., 106 U. S. 432; Winchester v. Craig, 33 Mich. 205. See Pers. Prop., Ques. 4, for remedy in replevin. IX. INJURY TO PERSON. a. Not Causing Death. 18. What are the elements of damage in cases of personal in- jury not causing death? . When punitive damages are not givfh, the elements of damage to be considered are (1) the plaintiff's loss of time from his busi- ness or employment; (2) his loss of capacity to perform the kind of labor for which he is fitted; (3) the expense he has incurred for medical services, nursing, etc., and (4) the mental pain he has suffered and any insult and indignity involved in the injury. 5 Am. & Eng. Ency. (1st ed.) 40. 19. A., when about to cross a railroad track, receives a severe mental shock by the passing of a train. The employee of the railroad company negligently failed to signal the fact that the train was approaching, but A. was in no way physically injured. Has A. any right of recovery? The weight of authority is overwhelmingly in favor of the posi- tion that no recovery can be had, where there is no physical injury or contact in connection with the mental suffering. Indianapolis, etc., R. R. Co. v. Stables, 62 111. 313. In that case the court said (p. 321): " The mental anguish which would not be proper to be con- sidered is where it is not connected with the bodily injury." See also Canning v. Williamstown, 1 Gush. (Mass.) 451. There is, however, a tendency at present in some of the courts to allow a recovery for mental suffering pnrely, and the theory of the law ef damages would seem to justify these cases. Once it is clearly established that any injury has been done, its nature should not preclude recovery. See 1 Sedgwick on Damages (8th ed.), 43 et seq. In practical accordance with this view is Craker v. Chicago, etc., R. R. Co., 36 Wis. 657; s. c. 9 Am. Ry. Rep. 118, in which the plaintiff was given a verdict of $1,000, for the insult of a conductor of the defendant commnv in kissing her. In this case, how- ever, there was the technical physical contact. / DAMAGES. 187 20. A.'s arm was broken through the negligence of the de- fendant company. The defense is that the arm would not have been broken but for a previous break which had not been prop- erly healed, and that the amount of damages must, at least, be reduced. What should be the judgment? Judgment should be for the plaintiff for the full amount of the injury. The physical condition of a passenger, or of any other plaintiff, whether known to the defendant or not, in no way affects the question of liability er the measure of damages. Allison v. Chicago, etc., R. R..Co., 42 Iowa, 274. See also Brown v. Chicago, etc., E. R. Co., 54 Wis. 342. In personal injuries, however, as in other cases, the injured person must take reasonable care to mitigate the consequences of the injury, and if the injury is aggravated or becomes permanent through neglect- ing to take such care, he cannot recover for Jhe injury arising from such neglect. R. R. Co. v. Pennell, 94 111. 448. But if the plaintiff use reasonable care in employing a physician, the damages will not be miti- gated by the fact that a more skillful physician could have prevented the aggravation of the injuries. Collins v. Council Bluffs, 32 Iowa, 324, 329; Stover v. BluehUl, 51 Me. 439. b. Causing Death. 21. What is the measure of damages in statutory actions by survivors in case of personal injuries causing death? The measure of damages is compensation for the pecuniary loss of the survivors, arising from the death of the deceased. The cir- cumstances to be considered are the age of the deceased, the amount of his earnings, his habits, health, capacity for labor, and probable duration of life. Macon, etc., R. R. Co. v. Johnson, 38 Ga. 409, 434. The loss of the plaintiffs must be a pecuniary one, and nothing is added as solatium for injury to the feelings of the survivors. Chicago, etc., R. R. Co. v. Harwood, 80 111. 88. But loss of intellectual and moral training and proper nurture of a child, and the loss of her husband's care and protection by a widow, were held to be pecuniary loss. Tilley v. >. Y., etc., R. R. Co., 24 N. Y. 471; Atchison v. Twine, 9 Kan. 350. It is not necessary that the survivors should have a legal right to support by the deceased, if they have been actually receiving aid from him and have a right to expect it. R. R. Co. v. Barron, 5 Wall. (U. S.) DO. But on the other hand, if the next of kin are not dependent upon hf>n'R Digest is to be found complete, in vol. 7, Am. and Eng. Ency. of Law (1st ed.), pp. 42-112 216 EVIDENCE. 217 Plainer, 13 Ohio St. 209; Knapp v. Abell, 10 Allen, 485); but by statute the accuracy of the official State reports is now generally recognized. The Federal courts take notice of the laws of all the States, be- cause they are created to administer the State laws, as well as those of the United States. Owings v. Hull, 9 Pet. 607, 625. But the Cupreme Court when sitting to review the decision of a State Supreme Court is limited as to its judicial knowledge of State laws by that of the court from which the case came. Hanley v. Donoghue, 116 U. S. 1. b. Burden of Proof. 4. What is the burden of proof? Does it ever shift? The phrase " burden of proof " is used in two senses: (1) As the duty of bringing forward evidence in support of a given proposi- tion; (2) As the duty- of establishing a proposition as against all counter-argument or evidence. Whichever party has an affinnatii-e case has the burden of proof in the second sense, i. e., the duty of ultimately establishing his case, by the balance of probabilities in a civil action, and against a reasonable doubt in a criminal prosecution. The question of which" side has the affirmative case, which would be settled entirely by the pleadings if these were scientific, is determined partly by them, partly by convenience, by presumptions which have hardened into rules of law, and so on. Clearly, in that sense, the burden of proof never shifts. After it is once fixed by these considerations, it remains with the party on whom it falls. In the first sense (the duty of going forward), the burden does shift. One side makes out at a certain stage of the proceedings a prima facie case. The opposing party must bring up evidence to offset this advantage, but it is evident that the duty of so doing may be sometimes with the one who must ultimately establish the affirmative case, and at other times with his adversary. The use of the one term for these two duties results in endless contusion. See on the -whole subject an extended discussion by Prof. James B. Thayer. in 4 Harvard Law Rev. 48; and also Baxter v. Camp, 71 Conn. 245. In England, it seems that the term " burden of proof " means the duty of going forward with evidence. Abrath v. R. R. Co., 11 Q. B. Div. 440." In Massachusetts, it means the duty of establishing the case. Powers v. Russell. 13 Pick. 69. But in most courts it is used indiscrim- inately in either sense. Tne point may be illustrated by the case of a will, where the capacity of the testator is questioned. The duty of ultimately establishing the mental state necessary to mane a valid will is admittedly with the 218 QUESTIONS AND ANSWERS. executor. Barry v. Butlin, 2 Moo. P. C. 480; Crowninshield v. Crown- inshield, 2 Gray, 524. That Is, if at the end of the case there is a bal- ance of probabilities against him, the executor loses. But the usual presumption of mental soundness holds, and the parties attacking the will must go forward with evidence of insanity before the executor need move at all. c. Presumptions. 5. Explain the terms " presumption of law " and "presump- tion of fact," These terms are expressive of two periods in the growth of the rules called presumptions. The origin of any rule of the kind lies in an observed connection between two facts. When this connection becomes fairly uniform, i. e., when it is perceived that if the fact X. is present, and the ordinary condition of things pre- vails, the fact Y. follows, a presumption arises that X. being shown to exist, Y. also exists. This is a presumption of fact, or, in other words, a prima facie rule of law. 1 Greenleaf on Evidence, 66, and note. It has the effect of evidence, in that when the fact X. appears, the opposing side has the burden of going forward to show that the usual condition of things is so altered tha?t the fact Y. does not necessarily follow.* . Most presumptions cease their development at this point, but some, like that of a lost grant after twenty years' adverse user of an incorporeal hereditament, have hardened into positive rules of law, not rebuttable. Tracy v. Atherton, 36 VI 503. This is what is meant by a presumption of law, or conclusive presumption, though the terms, as pointed out by Austin (1 Austin's Jurispru- dence, 491), are mutually contradictory. On the whole subject, see 1 Greenleaf on Evidence, 24, ff ; 3 Harv. Law Rev. 148ff. 6. What is the meaning and effect of the presumption of death 'after seven years' absence ? This presumption means that after an absence for seven years, during which the person in question has not been heard of, the effect of the rule that a thing once shown to exist is presumed to continue, is exhausted, and that, therefore, unless positive evi- dence is brought that the person is alive, the absence unheard-from is sufficient proof of death. 1 Greenleaf on Evidence, 57. This " presumption of death," however, does not settle or even indi- cate the time of the death. Both the beginning and end of the period are obviously out of the question as probable dates for the decease, and the result is that the party who needs to establish the exact day when *That a presumption has the further effect of actually carrying weight as evidence see Coffin v. U. S., 156 U. S. 432, where the presumption of innocence was involved. But see contra, State v. Smith, 65 Conn. 283. The rule in civil actions in Connecticut was in accordance with the United States Supreme Court doctrine. Barber's Appeal, 63 Conn. 393, but this was overruled in Vin- cent v. Mutual, etc., Co., 77' Conn. 288. the court acknowledging that Prof. Thayer's argument in his Treatise on Evidence, pp. 313, 539, 551, that a presumption has no weight as evidence, was unanswerable. EVIDENCE. 219 death occurred, must do so by other circumstances, as he best can. Nepean v. Knight, 2 M. & W. 894; State v. Plym, 43 Minn. 385. See Newell v. Nichols, 75 N. Y. 78, for an interesting discussion of the well- settled doctrine, that when two persons perish in the same disaster, their relative age and strength affofd no presumption as to which one survived the other. d. Admissions and Confessions. 7. What is the difference between admissions and confessions, and why are they admitted as evidence? The only difference is that the former term is usually applied to civil transactions, and the latter to acknowledgments of crime. They at first sight seem a plain exception ,to the rule against hear- say, but Greenleaf points out that they are " more properly admis- sible as a substitute for the ordinary proof, either in virtue of the direct consent of the party, as in the case of explicit admissions, or on grounds of public policy and convenience, as in the case of those implied from assumed character or acquiescence." 1 Green- leaf on Evidence, 229; I Jones on Evidence, 236. As a rule, admissions are not conclusive; for the party making them may deny their truth, but in two cases they are conclusive in their effect. This is on the principle of estoppel, and in that stage their truth or falsity has nothing to do with the case. The two cases are, (a) sol- emn admissions made in the course of judicial proceedings, either by the pleadings, or expressly, as by an agreement of counsel; (b) admis- sions extra indicium, which have been acted upon or by which the party has acquired some advantage for himself. 1 Greenleaf on Evidence, 38. 8. A.'s agent, in the course of the business in which he was em- ployed as agent, made declarations to B. on the subject of the business. Can B. state those remarJcs wlien called as witness in a suit against A., and if so, on what ground? Yes. On the ground that the agent is identified with the prin- cipal, while acting within the scope of his authority. U. S. v. Oooding, 12 Wheat. 460. The admissions of conspirators, also, are admissible against each other, their interest being joint. Queen v. Manning, 12 Q. B. D. 241; 1 Greenleaf on Evidence, 149. A mere interest in common is insufficient. Dan v. Brown, 4 Cow. 483, 492. 9. Are the admissions of the transferor of an overdue note made while he was the owner of it admissible to prejudice his transferee? There is a conflict on this question. On the ground that the transfer of an overdue! note is a mere assignment of a chose in ac- 220 QUESTIONS AND ANSWERS. tion, much is to be said for the admission of the transferor's decla- rations. Bond v. Fitzpatrick, 4 Gray, 89. But they have in some courts been ruled out, the purchaser's interests being considered by no means identical with those qf his predecessor in title. Paige v. Cagwin; 7 Hill, 361; Shober v. Jack, 3 Mont. 351. 10. What is meant by " voluntary," when it is said that con- fessions cannot be used against a prisoner unless voluntarily made? The word is highly technical. Stephen says, Digest, art. 22: "No- confession is deemed to be voluntary, if it appears to the judge to have been caused by any inducement, threat or promise, proceeding from a person in authority, and having reference to the charge against the accused, whether addressed to him directly or brought to his knowledge indirectly, and provided that (in the judge's opinion) such threat or promise gave the accused reasonable grounds to suppose that by making the confession he would gain some advantage or avoid some evil in reference to the proceedings against him." Reg. v. Baldry, 2 Denison, C. G. R. 430; State v. Phelps, 11 Vt. 116, 121. A well-settled exception to this rule should be noticed, to the effect that where a witness makes a confession on an offer of safety from the State, if he becomes the State's witness, and afterwards refuses to tes- tify fully against his accomplices, the government is absolved from its pledge, and the confession so gained may be used against the prisoner. Such a confession is thought to be probably true, because the prisoner, being free from any danger of prosecution, Avould have no motive for lying about himself. Commonwealth v. Knapp, 10 Pick. 477. e. Law and Fact. 11. 7s it true that questions of fact are exclusively for the jury, and questions of law for the court? No. The rule, when thus set forth, is misleading, partly be- cause it is directly untrue, and partly because it is inaccurately stated. It is untrue, in that frequently questions which are admittedly questions of fact are decided by the court. These are illustrated by the settlement of disputed points relative to the admissibility of evidence; such as whether a confession is " voluntary " (Com- monwealth v. Culver, 126 Mass. 466); or whether a conspiracy ia prima facie made out when declarations or acts of other persons are offered against a defendant, as a, co-conspirator. Stephen's Dig., art. 4. Such decisions, though they do not mean that the exist- ence of the subsidiary fact has been demonstrated, but only that enough has been shown { o make it proper to submit to the jury the testimony offered, are, nevertheless, decisions of questions of fact. Commonwealth v. Robinson, 146 Mass. 571. EVIDENCE. 221 Again, the rule as stated is inaccurate, on account of the ques- tions of fact decided by the court, but not recognized as such. One class of these is the interpretation of documents, where almost the whole matter in issue is the intention of the party or parties, a pure question of fact; yet this is always called a question of law. See Hamilton v. Ins. Co., 136 U. S. 255. Juries came into existence after judges, and some questions of fact were retained by the latter from motives of caution and pub- lic policy. Later, the judges deprived the jury of still other ques- tions of fact by judicial legislatiom. On the whole subject, see Thayer on Law and Fact, 4 Harv. Law. Eev. 147; Thayer's Cases on Evidence, 148; Keener, Quasi Con. 99. 12. What is decided when a court says there is " no evidence to go to the jury" or when a verdict is reversed as against evi- dence ? The point decided is that the evidence is so clear that reason- able and fair men can hold but one view. Bridges v. Ry. Co., L. R. 7 H. L. 213; Ry. Co. v. Converse, 139 U. S. 469. The dis- tinction should be carefully drawn between the foregoing and what is sometimes supposed to be the meaning of such a ruling; namely, that according to the opinion of the tribunal making the decision the evidence points to a certain conclusion. " To ask ' Should we have found such and such a verdict ? ' is surely not the same thing as to ask whether there is room for a reasonable difference of opinion." Brett, M. R., in Belt v. Lawes, London " Times," March 18, 1884. If the court thinks there is room for a reasonable dif- ference of opinion, it will not reverse a verdict, whatever its own opinion may be. 13. X. is struck by a train while driving across the track. Is an instruction to the jury correct that he must be found negli- gent unless he " looked and listened" before crossing? The States are divided. New York holds that an omission of these precautions is in itself negligence. Lewis v. Long Island R. R. Co., 162 K Y. 52; Rodrian v. R. R. Co., 125 id. 528. Other States maintain that no rule as to what is negligence per se can be laid down beforehand, and do not require these precautions in- variably, because in many conceivable cases their omission would not tend to show a lack of ordinary tare. R. R. Co. v. Voelker, 129 111. 540; Lavarenz v. R. R. Co., 56 Iowa/ 689; Bishop, Non-Con. Law, 1043. II. LEADING RULES OF EXCLUSION. a. Matters Likely to Mislead the Jury or Complicate the Case; and Those of Conjectural Significance. 14. .4 workman was injured by machinery claimed to have been run in a negligent way. The fact that after the accident 222 QUESTIONS AND ANSWERS. the owners took new precautions in running it was offered, and its admission denied. Was this ruling correct? It was, by the great weight of authority. Such a fact has only the slightest tendency to show negligence before the occurrence; it would distract the minds of the jury from the real point at issue and create a prejudice against the defendant. To admit it . would put a premium on a continuance of what, in the light of the acci- dent, appeared to be a dangerous condition of affairs. E. B. Co. v. Hawthorne, 144 U. S. 202; Morse v. E. E. Co., 30 Minn. 465. 15. Compare the two following cases, in both of which an illness of the plaintiff was alleged to have been caused by gas escaping from the defendant's pipes. (1.) Evidence excluded of illness at the same time in other houses on the same street as plaintiff's, into ivhich gas had es- caped. Emerson v. Gas Co., 3 Allen, 410. (2.) Evidence admitted of illness in the same house the plain- tiff was in, occurring at the same time. Hunt v. Gas Co., 8 Allen, 169. These two cases, decided in the same court, show that the rule as to facts which complicate the issue is one depending on the discretion of the judge. It is one of degree, of more or less. The illness in the neighboring houses was considered as of too slight significance, since other material circumstances might have been concurrent, while that in the same dwelling was sufficiently closer to the case in hand to carry it over the line. For a discussion of this general doctrine, see Darling v. Westmore- land. 52 N. H. 401 (a leading case), where the plaintiff's horse, while being driven along the highway, was frightened by a pile of lumber, at the roadside. Held, that the testimony by a witness, that his horse had been similarly affected by that pile 'of lumber, should not have been held irrelevant. Such a fact goes to show the effect of that lumber on horses, and evidence of that character should have been admitted to an extent limited only by the wise discretion of the trial judge. On the other hand, see Temperance, etc., v. Giles, 33 N. J. Law. 2P>0. a case in which the plaintiff had fallen into an areaway leading from the sidewalk to a cellar. Evidence that 10,000 persons annually passed the areaway in safety was excluded, on the ground that it would lead the jury away from the case in hand, or, if accepted, would necessitate a confusing and endless inquiry into the particulars of all the 10,000 cases. All courts agree that no investigation of such collateral cases in de- tail is possible; and perhaps the admission of such testimony shnply to show the general fact of the safe or dangerous character of the place, approaches the golden mean. Dist. of Columbia v. Armes, 107 U. S. 519. TCVJOENCF. 223 16. The question being whether a drover had exercised due care, evidence of the usual practice among drovers in the same district icas offered to show the proper standard of care. Is this admissible? Evidence of the habits of other drovers would generally be ad- mitted, but with restrictions. The jury should be clearly in- structed that such habits as are customary are by no means con- clusive evidence of reasonable care, and that the question for their decision is whether the care actiially taken conforms to their idea of the conduct of an ordinarily prudent man. Maynard v. Buck, 100 Mass. 40; Ey. Co. v. McDaniels, 107. U. S. 454. b. Character of Parties. 17. Define character as here used and state when evidence on the subject is admissible in criminal cases. Character means general reputation in the neighborhood. But though this is supposed to be an index of the person's actual dispo- sition from which an inference as to the probability of his commit- ting the crime may 'be drawn,' no direct evidence of that disposition can be admitted; i. c., particular incidents, showing a good or bad disposition, cannot be examined. Regina v. Rowton, Leigh & Cave, 520. Evidence of character is admissible only when the prisoner opens the subject himself. Commonwealth v. Hardy, 2 Mass. 317; 3 Greenleaf on Evidence, 25. 18. When is evidence of character admissible in civil causes? Character here also means reputation, and the rule based on that meaning is more logically applied than in criminal procedure. Such evidence is never admitted in civil cases, unless reputation is one of the elements of the plaintiff's case, as in libel and slander. There the reputation of the plaintiff may be shown by the defend- ant, in order to prove that he had little, if any, to lose by the al- leged libel or slander. Scott v. Sampson, 8 Q. B. Div. 491; 1 Jones on Evidence, 148; Stone v. Varney, 7 Mete. (Mass.) 86. In accident cases, a general reputation for carefulness is also sometimes admitted when the accident has occurred with no eye- witnesses, and no other evidence is available. R. R. Co. v. Rob- bins, 43 Kan. 145. c. Rule Against Hearsay and Exceptions. 19. What is hearsay evidence and why is it excluded? Hearsay is "that kind of evidence which does not derive its value solely from the credit to be given to the witness himself, but rests also in part on the veracity and competency of some other person." 1 Greenleaf on Evidence, 98, 100, 124. 224 QUESTIONS AND AXSWEES. The general rule is, that it is excluded when offered to prove the existence or the happening of the fact to which it relates; and the rule exists, not because such evidence has no probative force, but because what force it has is frequently so slight as to be mis- used by a jury, because there is no cross-examination, and because the door would be opened to fraud by its admission. Marshall, Ch. J., in Mima Queen v. Hepburn, 7 Cranch, 296i It should be remembered,' however, that such statements at second-hand are frequently useful and admissible for other pur- poses than to prove the fact to which they relate. An illustration is the admission, in a suit for malicious prosecution, of representa- tions as to facts, made to the prosecutor before he instituted -the prosecution. They tend to show that he had reasonable and prob- able cause for charging the crime. Bacon v. Towne, 4 Cush. 217; 1 Greenleaf on Evidence, 100. The exceptions which are attached to the rule against hearsay are the most important part of it. Considered as a whole they are illogical and arbitrary, but they grew up singly from hard cases, and to this Is partly due their lack of system. In exceptions 1, 2, 3, 4 and 7 (as numbered, infra), the declarant must be dead. Stephen's Digest on .Evidence, art. 25, and the cases cited below. Logically, the permanent insanity or the absence from the jurisdiction of the declarant are equally good reasons for ad- mitting his statements in evidence, and in many instances that principle has been laid down. Union Bank v. Knapp, 3 Pick. 96; North Bank v. Abbot, 13 id. 465; Reynolds v. Manning, 15 Md. 510, 523; Dray- ton v. Wells, 1 Nott & McC. (S. C.) 409. (1) EXCEPTION AS TO EEPORTED TESTIMONY. 20. What is the scope of this exception to the rule against hearsay evidence? It extends to this, that evidence is admissible of what was stated by a witness, since dead, insane or out of the jurisdiction, on a former trial of substantially the same issue between the same parties or those identified in interest with them, full opportunity for cross-examination having been enjoyed by the party against whom it is offered. Here, obviously, the most important objections to hearsay are removed by the statements being under oath, and by the opportunity for cross-examination. Stephen's Dig. Ev., art. 32; Drayton v. Wells, 1 X. & McC. 409; U. S. v. Macomb, 5 Mc- Lean, 286. (2) EXCEPTION AS TO DYING DECLARATIONS. 21. IVhat is the scope of this exception? Under this rule the declarations of a dying person, who believes himself to be in that condition (Regina v. Morgan, 11 Cox C. C. EVIDENCE. 225 337), are admitted in a prosecution for homicide (People v. Davis, 56 X. Y. 95), when they relate to the cause of the declarant's death. King v. Mead, 2 B. & C. 605. They were admitted originally on the ground that peculiar credit was due to statements made in fear of immediate death, but probably the rule can at present rest better on the necessity of the case, since it is rare that there are eye-witnesses of such crimes. It is the narrowest of all the ex- ceptions to the hearsay rule. (3) EXCEPTION AS TO PEDIGREE. 22. To what classes of facts does this exception r&fer, and by ichom must the statement be made? It refers to times and places of births, marriages and deaths, legitimacy, consanguinity, and the like, and rests upon the probability that the persons speaking know the facts, and have no temptation to misrepresent them. The statement must have been by someone related by blood to the person whose pedigree is in question, or by the husband or wife of a person so related. Johnson v. Lawson, 2 Bing. 86; Fulkerson v. Holmes, 117 U. S. 389, 397. A restriction as to the time of making the declaration, which applies only to this and one other exception to the hearsay rule, is that it must have been made before any controversy arose on the point (ante litem mot am). Berkeley Peerage Case, 4 Campb. 401. 23. How far does this exception extend? Does it allow such evidence to establish any fact of a pedigree whenever that fact may be in issite, as, for instance, to prove the age of one alleging Tiimself an infant? There is some authority- that it does, (North Brookfield v. War- Ten, 16 Gray, 171); and logically that position is plausible. But these exceptions are not built up logically, and the weight of au- thority is that such evidence is good only when the case involves a question of family. Haines v. Guthrie, 13 Q. B. Div. 818, per Brett, M. R.: Ins. Co. v. Schwenk, 94 U. S. 593, 598; 2 Jones on . Evidence, 318. (4) MATTERS OF PUBLIC OR GENERAL INTEREST. 24. What is. the basis and what are the limitations of this ex- ception? It is founded partly on the supposition that even' one is inter- ested in such matter?' (and the consequent probability of the truth of the common tradition), and partly on necessity, the beginnings of public rights often lying back of the generation when the oues- tion arises. Hence, common repute on a matter of this kind, as 15 226 QUESTIONS AND ANSWERS. shown by the statements of 'a deceased person, is admitted. "Weeks v. Sparke, 1 Man. & Sel. 679. In America, the rule is in many States much broader, and such evidence is admitted to show the location of private boundaries, especially when a large tract has been divided up. Morton v. Folger, 15 Cal. 275; Harriman v. Brown, 8 Leigh, 707. The statement, like those in pedigree cases, must have been made " ante litem motam." 1 Greenleaf on Evidence, 131. (5) ANCIENT DOCUMENTS, ANCIENT POSSESSION AND THE LIKE. 25. What is meant by saying that a document over thirty years old " proves itself " ? This means, that if it comes from proper custody, it is ad- missible in evidence without further proof of its due execution. If it purports to show an exercise of ownership over land, such as a lease or a license, it is admissible to show such ownership, though no actual possession under it appears. Such documents are of slight weight, however, unless acts of possession under them or other acts under similar papers of a later date are adduced, Mal- colmson v. O'Dea, 10 H. of L. Cases, 593; Boston v. Richardson, 105 Mass. 351. (6) REGULAR ENTRIES IN THE COURSE OF BUSINESS. 26. What was the " shop-bock exception/'* formerly so promi- nent? This was a rule recognized early by the common law, and also by statute (7 Jac. I, chap. 12, cited Taylor on Evidence, 641a), by which entries in the shop-books of small tradesmen were admissible under certain restrictions in actions by them against their customers. The practice was brought to this country and nourished with more or less vigor in many of the States. See note to Price v. Torrington, 1 Smith's Lead. Cas. (8th ed.) 752, for the rules in the separate jurisdictions; also Faxon v. Hollis, 13 Mass. 427: Eastman v. Moulton, 3 N. H. 156; Vos- burgh v. Thayer, 12 Johns. 461. But the topic is of comparatively small importance, now that parties can testifv in their own behalf. Shove v. Wiley. 18 Pick. 558; Anchor Milling Co. v. Walsh, 108 Mo. 277; s. c., 32 Am. St. Rep. 600. 27. What is the rule as to entries in the books of third per- sons? The rule is that contemporaneous entries made in the regular course of business are admissible after the death of the person mak- * Not an exception to the hearsay rule, but considered here because closely allied to that subject, EVIDENCE. 227 ing them, whether he made them in the course of his employ- ment or simply as an habitual practice. Welsh v. Barrett, 15 Mass. 380; Xichols v. Webb, 8 WTieat. 326; Augusta v. Windsor, 1 ( J M2. 317. This exception is an exceedingly useful one, and in fact is based chiefly on the extreme inconvenience of shutting out such evidence. Entries of the kind are moreover in all probability reliable and accurate. An important extension has been made by which such entries go In as evidence, during the lifetime of the person making them. In Shove v. Wiley, supra, the leading case, the witness had no recollection of a certain transaction, but his entry made in the regular course of busi- ness was admitted on his swearing to habits of accuracy and care. See also Bank v. Culver, 2 Hill, 531 (and a still broader ruling as to any contemporaneous memorandum, Guy v. Mead, 22 N. Y. 462). (7) DECLARATIONS AGAINST INTEREST. 28. Against what'" interest " must the declaration be? And what is the basis of this exception? It must be against the pecuniary or proprietary interest of the (de- ceased) declarant. The reason of the exception is, that a man is very unlikely to commit himself by acknowledging that money has been paid him, or that someone else owns land of which he is in pos- session, when such is not the fact. Higham v. Ridgway, 10 East, 109; Currier .v. Gale, 14 Gray, 504; Taylor on Evidence (8th ed.), 670. 29. What other features are noticeable in regard to this ex- ception? The circumstance from \vhich it derives its peculiar usefulness is, that whatever statements axe bound up in the acknowledgment of indebtedness, tenancy or the like, go in with it. The acknowl- edgment gains them admission, and they can then be used for what they may be worth. Davies v. Humphreys, 6 M. & W. 153; Livingston v. Arnoux, 56 N. Y. 507, 519. Oral declarations, though of less weight, are admissible as freely as written ones. Hinckley v. Davis, 6 N. H. 210; County of Ma- haska v. Ingalls, 16 Iowa, 81 (per Dillon, J., containing a review of the subject). Contra, Lawrence v. Kimball, 1 Mete. 527. (8) DECLARATIONS AS TO MENTAL OR PHYSICAL CONDITION. 30. How far are such declarations admissible? The general rule is, that they go in, whenever intention, mental capacitv, pain and the like become material; and the reason for it i? thus stated in Ins. Co. v. Hillmon, (1892), 145 U. S. 228 QUESTIONS AND ANSWERS. 285: " These expressions are the natural reflexes of what it might 'be impossible to show by other testimony. * * * . Such decla- rations are regarded as verbal acts." And see Waterman v. Whit- ney, 11 N. Y. 157, a case where declarations of a testator were brought in to show mental capacity. . It is obvious that the declarations are admitted " only to show the state of mind or body at the time they were made. " All narra- tion must be excluded." Ins. Co. v. Mosley, 8 Wall. 397. On the whole topic, see 2 Jones on Evidence, 352, 353: (9) DECLARATIONS PART OF SOME FACT ITSELF ADMISSIBLE RES OESTA). 31. State the scope of this exception (apparent only, accord- ing to Oreenleaf). As the heading indicates, the declaration is admissible as quali- fying or explaining an act which is in itself admissible. " Where an- act done is evidence per sc, a declaration accompanying it may well be' evidence, if it reflects light upon or qualifies the act." Wright v. Tatham, 7 A. & E. 361. Yet, though the declaration must be practically contemporaneous with the act, mere nearness in time is not enough. R. R. Co. v. O'Brien, 119 U. S. 99. " The declaration must not be mere narrative, * * * but must have been well calculated to unfold the nature and quality of the acts it was intended to explain." Rockwell v. Taylor, 41 Conn. 55. And see also, for full discussion, Waldele v. R. R. Co., 97 N. Y. 274. d. Opinion. 32. Where is the line drawn between " facts," and .inferences from them, so as to exclude testimony of the latter class? It is not easy to lay down a rule, for every sensation involves an exercise of judgment. Whenever the conclusion is so simple as to be unconscious, that conclusion may be. regarded as a fact; it is known, so far as anything can be. But when a conclusion is reached by a conscious process of reasoning, or when different per- sons might reasonably reach different conclusions, the result is an opinion, 'and is inadmissible. Thayer's Cases on Evidence, 672, note by Geo. C. Lewis; Ins. Co. v. Lathrop, 111 IT. S. 612. 33. Is it permissible to ask an " expert," i. e., one of special skill and knowledge on the subject in question, what is his opin- ion " on the evidence " in a case? No. The proper way to question him is to assume the truth of certain facts as a foundation for his opinion, and then ask some such question as " These being true, would so and so follow, in your opinion? " In this way the jury can see upon what facts the ex- EVIDENCE." 229 pert bases his judgment, and their province, viz.: to determine the effect of the evidence actually given, is not invaded. People v. McElvaine, 121 N. Y. 250; Hunt v. Gas Light Co., 8 Allen, 169. 34. Under what restrictions is the opinion of a nonprofes- sional witness admissible as to the sanity of an individual? His judgment must be based upon personal knowledge of the circumstances involved in the inquiry, and his opinion must come in as a summary, after he has stated in more or less detail the facts on which he bases it. On these terms, by the weight of authority, the opinions of ordinary witnesses on that subject are admissible, partly because such a judgment approaches a "fact" as defined above, and partly because of the practical impossibility of a witness's bringing before a jury all the circumstances necessary for them to form a correct conclusion. Ins. Co. v. Lathrop, 111 U. S. 612; Dunham's Appeal, 27 Conn. 192; Hardy v. Merrill, 56 N. H. 227. Contra, Clapp v. Fullerton, 34 N. Y. 190; and also (on grounds of public policy), Commonwealth v. Fairbanks, 2 Allen, 511. 35. How would you prove a signature genuine? There are at least three ways, the third of which only has raised question: (1) testimony as to its genuineness, by one who has seen the alleged author of the signature write other things (even if only once); (2) testimony by one whose acquaintance with the hand- writing is gained from business dealings with the alleged author; (3) comparison, by any witness of skill in such matters, of the writing in dispute with other writings proved to be genuine. In general, the last method is allowed not only where the documents containing the writings proved to be genuine and used as a standard for comparison, are already before the court in the suit, but even where they are brought in simply for the pur- pose. Moody v. Rowell, 17 Pick. 490; Lyon v. Lyman, 9 Conn. 61. Some courts have shut them out in the latter case, because the proof of their genuineness tends to complicate the case. Vinton v. Peck, 14 Mich. 287. But the*e are in the nlain overridden by statute. See Rogers on Expert Testimony (2d ed.). 131. III. WRITINGS. a. Proof of Contents. 36. What is the "Best Evidence" rule? This rule is that in proving a disputed fact, the best legal evi- dence which can be had must be produced. In practice, the ap- plication of the rule has to do almost, if not quite, exclusively with the proof of the contents of writings. " Primary " evidence of the contents, as explained below (Xo. 37), must be produced, or its absence accounted for; or to state the rule the other way, evidence 230 QUESTIONS AND ANSWERS. which on its face shows that better evidence exists, as for example, a copy of the document, is inadmissible, unless good reason is given for the nonappearance of the higher grade. 1 Best on Evidence, 87-89; 1 Jones on Evidence, 197-198. As formerly laid down, the rule ran that one must bring the best evidence he could, and if he did that it was enough. Even as late as McKinnon +. Bliss, 21 N. Y. 218, it is stated that " the best evi- dence of which the nature of the case admits is always receivable," although the error of such a statement had been pointed out as early as 1794, by Christian, in the twelfth edition of Blackstone, as follows: " If the best legal evidence cannot be produced, then the next best Jeyal evidence shall be admitted. * * * Secondary evidence is as accurately denned by the law as primary. But in general, the want of better evidence can never justify the admission of hearsay, interested witnesses," etc. See note by Prof. Thayer, in his Cases -on Evidence, p. 732. 37. What are the important classes of primary evidence in proving a document? (1) The document itself, the authorship being proved as shown below. (2) Admissions made by the other party or those under whom he claims (see Ques. 7-9), and covering the same subject-matter as the document. Slatterie*v. Pooley, 6 M. & W. 664; Smith v. Pal- mer, 6 Cush. 513, 520. But this rule is not universal. Jenner v. Joliffe, 6 Johns. 9. (3) Duplicate originals; or any one of a number of documents all made by printing, photography or any other process of a nature to insure uniformity, of result. Eex v. Watson, 2 Stark. 116; Stephen's Dig. Ev., art. 64. 38. What are the chief classes of secondary evidence and when are they admissible to show the contents of a document? They are (1) copies of the original (certified or otherwise*); and (2) oral evidence of the contents by one who has seen the writing. See Stephen's Dig. Ev., art. 70. Secondary evidence is admitted: (1) Where the original is a pub- lic document, such records being too valuable to be moved about the country. Marsh v. Collnett, 2 Esp. 665; s. c., Thayer's Cases on Evidence, 733; Delafield v. Hand, 3 Johns. 310, 313. (2) Where the original has been lost or destroyed, and a proper search has been made. Sugden v. Lord St. Leonards, 1 Prob. Div. 154 (a lost will); Davis v. Sigourney, 8 Mete. 487. (3) Where the * By the weight of authority all classes of secondary evidence stand on an equality; that is, as soon as the absence of primary evidence is accounted for. oral evidence is ns readily admissible as a certified copy. Doe v. Ross. 7 M. & W. 103 ; Goodrich v. Weston, 102 Mass. 362. Contra, scmble, Stebbins v Duncan, 108 U. S. 43. EVIDENCE. 231 original appears to be in the power of the adverse party and he refuses to produce it on notice, or without notice, if on the plead- ing -he must be supposed to have notice. Howell v. Huyck, 2 Abb. App. Cas. (N. Y.) 423; Riggs v. Tayloe, 9 Wheat. 483, 486. (4) Under various statutory provisions. b. Proof of Authorship. 39. How would you prove that a document was actually exe- cuted by the person who appears to have done so? The inflexible common-law rule, which is still the prevailing doctrine except where modified by statute, was that when an in- strument was produced, the execution of which appeared to be at- tes^d by witnesses, at least one of the witnesses should be called to prove such execution if living, competent and within the reach 01 the process of the court; and this rule held even if the person who appeared to have executed the document admitted the 'fact. Rex v. Harringworth, 4 M. &'S. 350. The witness was said to have been. selected by the party to prove what occurred at the execution. See 1 Greenleaf on Evidence, 569 et seq. The exceptions to the rule are: (1) Ancient documents, which "prove themselves" (see Ques. 25); (2) Where the adverse party produces the instrument, and claims an interest under it. Pearce v. Hooper, 3 Taunt. 60. (3) Where the witness is dead, insane or beyond seas. Brigham v. Palmer, 3 Allen, 450. (4) Where the document is only incidentally in issue in the case. Demonbreun v. Walker, 4 Baxt. (Tenn.) *199. c. Alterations. tO. // one seeks to recover. on an instrument which bears marks of alteration, what is the rule as to proof of the time when th# alterations were made? It is stated in various ways, but most frequently that there is a presumption that the alterations were made subsequent to the execution of the instrument. The real meaning of this is that there is no presumption either way, but that the person relying on an instrument so altered must establish its genuineness. It is absurd to say the plaintiff is always in the wrong. See Hill v. Barnes, 11 N. H. 395 (promissory note); Ely v. Ely, 6 Gray, 439 (deed): Grossman v. Grossman, 95 N. Y. 145 (will); and .1 Green- on Evidence, 564. 41. What is the effect of an alteration in a material part of a deed? The former rule, that any such alteration, by whomsoever made, avoided the instrument (Pigot's Case, 11 Co. 27), has been modified. 232 QUESTIONS AND ANSWERS. At present the deed is only void, if the alteration is by a party or one privy to him, without the consent of the other party. Bige- low v. Stephens, 35 Vt. 521; Gleason v. Hamilton, 138 N. Y. 353. d. The " Parol Evidence " Rule. 42. State the rule, the reason for its existence, and the gen- eral limitations on its operation. The rule is that when any agreement between parties or any transfer of property has been put into the form of a document,. i. e., into a formal writing, the terms of that written statement can- not be contradicted, altered or added to by any oral evidence which would tend to show that the parties understood or meant something different from what the written words say.* It is assumed that, when men adopt this deliberate form of ex- pression instead of leaving their agreement in verbal form, they mean. the writing to be final, and, therefore, have used language, which corresponds to their actual intentions. 1 Greenleaf on Evi- dence, 275; Stephen's Dig. Ev., art. 90. This reason for the rule affects only those who are parties to the writing, and the rule consequently binds only them and their representatives. It doe& Hot shut off strangers from introducing oral testimony of the actual facts of the transaction, which may have a bearing upon their interests, even though these may be entirely contradictory to- the writing. Stephen's Dig. Ev., art. 92; McMaster v. Ins. Co., 55 N. Y. 222, 234. For obvious reasons, also, oral evidence may be used to overthrow the writing by showing fraud, duress, illegality, mistake, want of consideration or the disability of a party from infancy or the like. 1 Greenleaf on Evidence, 284. 43. Suppose a party wishes to show that, besides the writing, there was also a verbal agreement, as, for instance, a promise by a grantor of land to grade and build a street on land adjoin- ing that granted. Can he do so? The test given by Stephen is quoted with approval in Durkin v. Cobleigh, 156 Mass. 108. " The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, if from the circumstances of the case the court infers that the parties did not intend the docu- ment to be a complete and final statement of the whole transaction between them," may be proved. Stephen's Dig. Ev., art. 90. In Durkin v. Cobleigh, the agreement to build the street was ad- mitted. See Naumberg v. Young, 44 N. J. L. 331, for a decision excluding evidence of an oral undertaking as to the condition of a boiler in a factory leased by the defendants. * Study questions 44 and 45 in connection with this statement of the rule. EVIDENCE. 233 44. It is obvious that even after a close study of a will or other instrument by itself, it does not, as a rule, dearly appear what the language employed by the parties means, or what is the scope and bearing of the document. How far may the Court en- lighten itself by outside evidence* as to the circumstances sur- rounding the case? Baron Parke in Shore v. Wilson, 9 Ol. & F. 555, divides the evidence admissible, for this purpose, into two classes. The first is outside evidence to explain foreign or technical words, or those having a peculiar local usage.. The second class of such evi- dence he. describes as "every material fact which will enable the court to place itself as near as may be in the situation of the parties" to the instrument, is admissible. Judge Holmes, in Doherty v. Hill, 144 Mass. 468, says: "In every case the words used must be. translated into things and facts by parol evidence." We append in a note,f the first three of the rules formulated by Wigram in his Treatise on Extrinsic Evidence in Aid of the Inter- pretation of Wills. They apply equally to other writings. See also 1 Greenleaf on Evidence, 286-289, inclusive. 45. What is meant by the terms "patent" and "latent" ambiguity? and how does the existence of a latent ambiguity modify the general rules of admitting outside evidence? The meaning of these terms is thus stated by their originator, Lord Bacon. A patent ambiguity is " that which appears to be ambiguous upon [the face of] the deed or instrument." A latent ambiguity is " that which seemeth certain for anything that ap- peareth upon the instrument, but there is some collateral matter out of the deed, that breedeth the ambiguity." For example, " I give all my horses to my nephew John or Thomas," is obviously ambiguous in itself; but "I give all my horses to my nephew John," is by itself clear of any doubt, and only becomes ambiguous when it appears that there were two nephews by the name of John. See * By "outside evidence" we mean evidence of any fact not appearing in the writing itseif. 1 1 A testator is always presumed to use the words in which he expresses himself a< cord ing to their strict and primary acceptation, unless front, t/ie context of iht will it nppeart that he has used them in a different sense ; in which case the sense in which he thus appears to have used them will be the t>ense in which they are to be construed. II. Where there is nothing in the context of a will, from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, and where his words no interpreted are sensible with reference to extrinsic circumstances it is an inflexible rule of construction, that the words of the will shail be interpreted in their strict and primary sense, and in no other, although they may be capable of some popular or secondary interpretation, and although the most conclusive evidence of int-ntion to use them in such popular or secondary sense be tendered. III. Where there is nothing in the context of a will, from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, but his words, so interpreted, are insensible with reference to extrinsic cirnim tmif-s, a court of law n.ay look into the extrinsic circumstances of the case to see whether the meaning of the words be sensible in any popular or secondary ense, of which, with reference U> thete circumstances, they are capable. 234 QUESTIONS AND ANSWEES. 1 Greenleaf on Evidence, 297-300, and as to the uselessness of the phraseology, 3 Harv. Law Rev. 332. The rules governing the evidence admissible to remove ambigui- ties, so far as the mass of decisions can be reconciled, are appa- rently as follows: 1. To remove a patent ambiguity the usual rule of interpretation fixes the limit, namely, evidence to show the situation and sur- rounding circumstances in which the testator was, and with refer- ence to which he presumably acted. See Ques. 42 and 44. 2. When a latent ambiguity occurs a further step is taken, which establishes the great exception to the ordinary rules of con- struing writings. The direct declarations of the testator, i. e., his statements of what he meant by the words used in his will, are to be admitted.* A prerequisite to the admission of such state- ments is that the words used in the will furnish a clear description of two or more persons or things, for the theory is that the testator has actually described what he means, but that by accident the words fit another person or thing equally well. " To my nephew," for example, would not be sufficient to let in the testator's direct statements. Doe d. Hiscocks v. Hiscocks, 5 M. & W. 363; Bodman v. Tract Society, 9 Allen, 447; 1 Greenleaf on Evidence, 289, 290, notes, and cases cited. IV. WITNESSES. 46. What classes of persons were considered at common law incompetent to testify? and what are the rules at present? The common law excluded infidels, i. e., those not believing in a God or a punishment by Him for swearing falsely (Omichund v. Barker, Willes, 538; s. c., Thayer's Cases on Evidence, 1081); those insane; not of sound mind; or legally infamous (convicted of certain crimes); and, especially, interested persons. Thurston v. Whitney, 2 Gush. 104. These disqualifications have been largely modified by decision and statute with this general result: (1) In many States it is pro- vided that no one shall be incompetent on account of his opinions on religion, but he is required to make a solemn statement of the truth of his testimony, and is guilty of perjury for wilful and cor- rupt misstatement. 3 Jones on Evidence, 732, 733; (2) Insane persons may testify in a lucid interval, if deemed by the court capable of understanding the obligation of an oath, and of giving correct answers. 3 Jones on Evidence, 737 ; Coleman v. Common- wealth, 25 Gratt. (Va.) 865; (3) The evidence of children will be received, if the witness' mind is sufficiently matured to understand, in general, the meaning of an oath. 3 Jones on Evidence, 738, 739; (4) Persons convicted of crime, or having an interest, are al- It may be noted that much of the obscurity which pervades the discussion of the sub- ject has ari en from the use of the various names applied to such statements, " parol evi- dent." ''extrinsic pvidencp." " direct testimony " and 30 on, when the same terms are used elsewhere in other and widely different senses. EVIDENCE. 235 most universally allowed to testify, the circumstances affecting them being considered to go only to their credibility. 3 Jones on Evi- dence, 743, 748. The work above cited, sections 730-748 has, perhaps, the clear- est and most concise treatment of the subject, and references to the State statutes will be there found collected. See also 1 Green- leal on Evidence, ' 327-430. 47. What are the principal classes of privileged communica- tions? May the "privilege" be waived? The two leading classes are communications between husband and wife, and between attorney and client. . 1. The first arises from the identity of interest and, especially, from the necessity of preserving the mutual trust and confidence of the conjugal relation. By the common-law rule, which still pre- vails in many States, this prohibition covers conversations be- tween husband and wife on any subject. O'Connor v. Majori- banks, 4 Man. & Gr. 435; Dexter v. Borth, 2 Allen, 559. In other States it is limited to confidential conversations. Southwick v. Southwick, 49 N. Y. 510. Whether such testimony may be -given by a husband or wife, if the other spouse consents, is not settled. 3 Jones on Evidence, 757. 2. The reason of protecting conversations and other communi- cations between attorney and client on professional matters is leased on a choice between two evils. An occasional failure of jus- tice is deemed better than continual uneasiness and distrust in conferences between a client and his adviser. Foster v. Hall, 12 Pick. 89; Goddard v. Gardner, 28 Conn. 172. The privilege is clearly the client's, and if he waives it, the attorney will be*allowed to state what was said. Foster v. Hall, supra; Chirac v. Reinicker, 11 Wheat. 280, 293. And see Westover v. Aetna, etc., Co., 99 N. Y. 56. 48. Can a witness refuse to answer a question on the ground that it will tend to subject him to pecuniary liability? No. It has been finally settled that the privilege of refusal ex- tends only so far as to allow a witness to protect himself from criminal prosecution or from suffering a penalty or forfeiture. Bull v. Loveland, 10 Pick. 9; Taney v. Kemp, 4 Harr. & J. (Md.) 348; 3 Jones on Evidence, 895. 49. A witness has no recollection whatever of certain facts, but can swear positively as to their occurrence from their being stated in a memorandum he made at the time. May his testi- mony go in ? Yes. He swears that he could not have made the entry unless the fact had been true. The evidence is generally more weighty 236 QUESTIONS AND ANSWERS. where the memorandum was set down for the express purpose of perpetuating the facts. State v. Rawls, 2 N. & McC. (S. C.) 331;. Halsey v. Sinsebaugh, 15 N. Y. 485.* 50. How is the credibility of a witness directly attacked? There are several methods: (1) A familiar course is to call wit- nesses who are first asked if they know the general reputation for truth and veracity of the person who has testified, and then, what that reputation is. Generally these witnesses are then asked whether they would believe him under oath. 1 Greenleaf on Evidence,. 461, note c; 3 Jones on Evidence, 862-865. Sometimes, the question is whether his reputation for veracity is up to the average of mankind. State v. Randolph, 24 Conn. 368. (2) The witness may be impeached by contradicting his state- ments by the testimony of other witnesses, provided those state- ments are material to the issue. In other words, you cannot im- peach him by asking others about collateral matters merely for the purpose of contradicting him. Lawrence v. Barker, 5 Wend. 301;. Pullen v. Pullen, 43 N. J. Eq. 136. (3) A third method is by showing previous statements inconsist- ent with those made at the trial. Stephen's Dig. Ev., 131; Hart v. Bridge Co., 84 X. Y. 56; and on all three methods see summary in Gaines v. Relf, 12 How. 555. The cross-examination is, of course, in many cases, sufficient in itself to discredit the witness by bringing out his bias, interest,, relationship, means of acquiring knowledge of the facts, and the like. , 51. If your own witness surprises you by testifying in an un- expected manner, may you show him to be unworthy of cred- ence? As a rule, a party is not allowed to discredit his own witness, Having introduced him, he is presumed to know his character and, in a way, to vouch for him. But, in the case suggested, you may ask questions to recall to the mind of the witness the statements previously made to you, and to draw out an explanation. Bullard v. Pearsall, 53 N". Y. 230; 1 Greenleaf on Evidence, 442-444: 3" Jones on Evidence, 859, and statutes cited. And, of coure, the facts in issue may always be shown by the evidence of others, even though the credit of your preceding witness be impaired therebv. Skellinger v. Howell, 8 N. J. Law, 310; Olmstead v. Winsted Bank, 32 Conn. 278. * Tliis species of testimony should not be confused with that noted in Ques. 27. There- the memorandum is eviaence in itself and goes before the jury, the oath being only to verity it as original and made in the course of business. In the case here mated, however, the oath is the evidence and is affected as to its credibility by the character of the memorandum connected wtih it. See note to Price v. Torriugton, 1 Smith's Lead. Cas. (8th ed.) 572-073; and note, Thuycr's Cas. on Ev. 531, 532. INSURANCE. I. GENERALLY. 1. Define insurance. Insurance is " a contract whereby, for a stipulated consideration, one party undertakes to indemnify the other against damages or loso on a certain subject by certain perils." 1 Phillips on In- surance (5th ed.), 1. The principles relating to contracts in general govern also in insurance, and unless it is forbidden by some statute or by public policy, an individual or a partnership, as well as a companv, may enter into such a contract. May on Insurance (3d ed.), 35. II. WARRANTY, REPRESENTATION AND CONCEALMENT. 2. Define a warranty and a representation in insurance, and state tlie effect of the falsity or violation of each. A warranty is a statement or stipulation, inserted or referred to in and made a part of the policy, upon the truth or performance of which, on the part of the insured, the validity of the contract depends. A representation is not a part of the policy, but is an incidental statement or representation made by the insured, upon the faith of which the policy is issued. Daniels v. Hudson, etc., Ins. Co., 12 Cush. (Mass.) 416. The falsity or violation of a warranty is fatal. The statements must be literal^ true and the stipulations fully observed, or the policy is void, and the insured cannot recover by showing that the warranty was immaterial, or that the breach of it in no way con- tributed to the loss, or that the false statement was made through mistake. Glade v. Ins. Co., 56 Iowa, 400. The falsity or violation of a representation is only fatal when the falsity is in regard to facts material to the risk, and even then it need only be substantially true. Horn v. Ins. Co., 64 Barb. (N. Y.) 81; Am. & Eng. Ency. of Law (1st ed.), " Insurance," '290-296. 3. A., when applying for a policy on his building, represents that it is used for storing hardware, which is true. Before the policy is issued he uses it for storing oil, hut is asked no fur- ther question as to the use of the building. Is the policy which is afterwards issued binding? No. The representation is deemed to be made at the time the contract is consummated, and must be true at that time. Ins. Co. 238 QUESTIONS AND ANSWERS. v. Ewing, 92 U. S. 377. When the contract is consummated, how- ever, no subsequent change of the facts represented renders the policy void. In the absence of actual stipulation to that effect, there is no representation that the building will continue to be so- occupied. Frisbee v. Ins. Co., 27 Penn. St. 325; Blood v. Howard Ins. Co., 12 Cush. 472. 4. A. makes a written application for an insurance policy , and makes certain false oral representations at the same time. Can he recover for a loss of the properly? Yes. When the application is made in writing it is presumed that all representations are incorporated in the application, and those made orally cannot be shown. Ins. Co. v. Howry, 96 U. S. 544. 5. Define concealment in the law of insurance, and state its effect. Concealment is the intentional withholding, by the insured from the insurers, of facts material and prejudicial to the risk, which ought in good faith to be made known. The facts must be known to the insured to make the concealment intentional. Boggs v. American Ins. Co., 30 Mo. 63. And it has been held that even when known, an innocent failure to communicate facts as to which the applicant is not questioned will not avoid the policy. Wash- ington, etc., Co. v. Ins. Co., 135 Mass. 503; Buck v. Ins. Co., 76 Me. 586. The withholding of facts actually known avoids the policy, but whether or not the insured has such knowledge is a question for the jury (Houghton v. Ins. Co., 8 Mete. [Mass.] 114); but he must be presumed to have such knowledge as a reasonable man ought to have under the circumstances. Dennison v. Ins. Co., 20 He. 125. 6. A.'s policy called for the payment of premiums in install- ments, the policy to be suspended if payment was not made. One payment was due January 1st. On that day A. was seri- ously ill and unable to make payment. Loss occurred on Jan- uary 2d. ' Would his nonpayment be excused? No. Physical inability of the insured is not an excuse for fail- ure to pay the premium when due, and the policy would be void. Evans v. Ins. Co., 64 1ST. Y. 304; Carpenter v. Centennial, etc., Assn., 68 Iowa, 453. Nor is the insured excused for nonpayment if the company is- enjoined from doing business pending an examination of its condi- tion. Universal L. Ins. Co. v. Whitehead, 10 Ins. L. J. 337. See Coffey v. Universal Ins. Co., id. 525. But where the company has failed or the receiver has given no- INSURANCE. 239 tice he will not receive any more premiums, or has declared the policy forfeited, or the company has changed its agent, and the premium has been paid to the former agent, of which fact the company has notice but makes no report to the insured, who acted in good faith, the nonpayment is excused and the policy may be enforced. Atty.-Gen. v. Guardian, etc., Ins. Co., 82 N. Y. 336; So. L. Ins. Co. v. McCain, 96 U. S. 84. 7. Payment upon A.'s policy became due and he was allowed an additional week to make same during which time and before payment was made the loss occurred. Could the company be held if the policy provided that nonpayment should avoid the policy? The company could be held. Provisions as to the payment of the premium may be waived after the policy takes effect, by parol as well as in writing, and any act of the company which would reason- ably imply that the company did not mean to insist upgn an ab- solute performance would be a waiver. Alexander v. Continental Ins. Co.. GT Wis. 422; Union, etc., Ins. Co. v. Pottker, 33 Ohio St. 459; Lyon v. Travelers' Co., 55 Mich. 141. III. INSUEABLE INTEREST. 8. A. takes out a policy of insurance upon a house in which fie has no interest. He pays the premium in a note. Can it be collected? Suppose loss occurs after the note is collected? If the insured has no pecuniary interest in the house the policy is a mere wagering contract and void, even if the policy make no provision for such a case. Notes given for the payment of pre- miums on such a policy are, therefore, not enforceable, for lack of consideration, and no action can be maintained for loss, even if premiums are paid. Sweeney v. Ins. Co., 20 Penn. St. 337; Free- man v. Ins. Co., 38 Barb. (N. Y.) 247. But see Ins. Co. v. Johnson, 24 X. J. Law, 576. The interest must exist at the commencement of the policy; it need not exist at the time of suit. Mowry v. Ins. Co., 9 R. I. 346. 9. What constitutes an insurable interest in property? If the insured would suffer pecuniary injury from the loss of the property, his interest is an insurable one. There need not be a legal title to the property. Rohrbach v. Ins. Co., 62 N". Y. 47; Merrett v. Ins. Co., 42 Iowa, 11. Thus, an equitable in- terest may be insured. Higginson v. Ball, 13 Mass. 94. A vendor, who has contracted to sell, or a vendee in possession, mar insure his interest. MacCutcheon v. Ingrahpm (W. Vn.). 9 S. E. Rep. 260; Rumsey v. Phoenix Ins. Co., 17 Blatchf. (U. S.) 527, 529. 240 QUESTIONS AND ANSWERS. So, also,, an insurable interest is held by a lessor or lessee, a mort- gagor or mortgagee, a holder of a lien upon property by statute or common law, an assignor, assignee, executor, administrator, trustee for the use of the cestui que trust, and others having similar in- terests in property. An agent or consignee who is interested in the- property only to the amount of his commission may also insure it in his own name and recover the entire amount of the policy, holding all beyond his own interest in trust for his principal. Aetna Ins. Co. v. Jackson, 16 B. Mon. (Ky.) 242; Williams v. Ins. Co., 15 La. Ann. 651. And similarly a common carrier, or any person re- sponsible for goods in his custody, has an insurable interest to the extent of his liability. The Sidney, 23 Fed. Rep. 88, 92. A builder, who is not to be paid until the building is completed, has an insurable interest in the property. Franklin, etc., Ins. Co. v. Coates, 14 Md. 285, 295. "A contract of life insurance is not necessarily one merely of in- demnity for a pecuniary loss, as in marine and fire policies. It is sufficient'to show that the policy is not invalid as a wager policy, if it appears that the relation, whether of consanguinity or of affinity, was such, between the person whose life was insured' and the benefi- ciary named in the policy, as warrants the conclusion that the beneficiary had an interest, whether pecuniar}' or arising from dependence or natural affection, in the life of the person insured." Ins. Co. v. Bailey, 13 Wall. (U. S.) 619; Rawls v. Ins. Co., 27 N. Y. 282, 289. But any person may insure his ozc 1 ;/ life for the benefit even of a stranger. Johnson v..Van Epps, 110 111. 551. And it seems that the policy is good even if the premiums are paid by the other party. Aetna Life Ins. Co. v. France, 94 U. S. 561; St. John v. Ins. Co., 13 N. Y. 31 40; Hoyt v. Ins. Co., 3 Bosw. (X. Y.) 440, 446. Any person who is dependent upon another for support has a sufficient interest in his life to support a policy, and the re- lation of husband and wife gives each an insurable interest in. the life of the other. Currier v. Ins. Co., 57 Vt. 496, 500. Thus where a married woman insured her husband's life and afterwards obtained a divorce from him the insurance company cannot cancel the policy on the ground that the woman no longer has an insur- able interest in his life. He is still under a natural obligation to support any children, and alimony awarded the wife would make her in effect his creditor. ' McKee v. Ins. Co., 28 Mo. 383. It has also been held that the relation of parent and child is sufficient alone to establish an interest insurable by either. Grat- tan v. Ins. Co., 15 Hun (N. Y.), 74, 76; Reserve, etc., Co. v. Kane, 81 Penn. St. 154; Loomis v. Ins. Co., 6 Gray (Mass.), 396, 402. In the last case this position is defended " not merely because they are bound to support their lineal kindred when in need of relief, but upon considerations of strong morals and the force of natural affection between near kindred, operating more efficaciously than those of positive law," p. 399. INSURANCE. 241 This principle has been denied, however. Guardian, etc., Ins. Co. v. Hogan, 80 111. 35. And certainly no other relationship will, per sc, raise an in-surable interest as that of a son-in-law (Rom- bach v. Ins. Co., 35 La. Ann. 233); or a nephew. Singleton v. Ins. Co., 66 Mo. 63. Employers and employees have an insurable interest in the lives of each other, and a creditor may in- sure his debtor's life. Miller v. Ins. Co., 2 E. D. Smith (N. Y.), 268; Hoyt v. Ins. Co., 3 Bosw. (N. Y.) 440. 10. A. has an insurable interest in the life of B. and takes cut a policy upon it. He then assigns the policy to X., who has no such interest. Can the policy be enforced? No. The assignee as well as the man originally insured must have an insurable interest. Ins., etc., Co. v. Sturges, 18 Kan. 93; Franklin Ins. Co. v. Sefton, 53 Ind. 380. IV. INSURANCE AGENTS. 11. What are the powers of insurance agents? In insurance as well as other branches of business the general rules of agency apply, and insurance agents have such powers as they are held out by the company as exercising. Travelers Ins. Co. v. Edwards, 122 U. S. 457; Hamilton v. Home Ins. Co., 94 Mo. 353. The provisions of the policy, however, limiting the authority of the agent, are in most jurisdictions binding. Brown v. Mass., etc., Ins. Co., 59 X. H. 298; Gladding v. Ins! Co., 66 Cal. 6; Leonard v. Ins. Co., 9? Ind. 299; Shawmut, etc., Ins. Co. v. Stevens, 9 Allen (Mass.), 332. Some cases, however, are contrary. See Haight v. Ins. Co., 92 N. Y. 51; Carson v. Ins. Co., 39 Am. Rep. 584; s. c., 14 Vroom (X. J.), 300. There are also similar decisions in Iowa, Con- necticut, Tennessee, Wisconsin and Indiana. 12. An agent, in soliciting business, himself filled out his client's application for a policy, and inserted in it representa- tions which he knew were false. The infitred signed the appli- cation, not knowing the representations it contained, and igno- rant of any limitation of the agent's authority. Can he deny that he is bound by the representations? The rule that a written contract cannot be varied by parol evi- dence will not, in most jurisdictions, prevent the insured from showing that the application was made out by the agent, and in such a case the policy could be enforced. The manner in which the insurance business is actually conducted has been considered by the courts, and they have refused to shut their eyes to the fact that the companies pay their agents large commissions upon 16 242 QUESTIONS AND ANSWERS. the premiums collected and that in making out applications the agents are acting for the companies and not for the applicant. The best view is that the companies in such cases are held just as the agents would be if they were underwriters on the policy. The Union, etc., Co. v. Wilkinson, 13 Wall. (U. S.) 222. The courts of Massachusetts and of several other States, how* ever, are " contra ", on the ground that to receive evidence- that a statement is not that of the person who signed, would vio- late the rules of evidence as- to written contracts. Brown v. Ins, Co., 59 N. H. 298, 301', McCoy v. Ins. Co., 133 Mass. 82; Smith v. Ins. Co., 24 Penn. St. 320, 324; Ins. Co. v. Martin, 8 Ins. L. J. (N. J.), 134, 140, and cases there cited. These cases seem well criticised, however, in The Union, etc., Co. v. Wilkinson, snpra, on the ground that they make the rule of evidence " the instrument of the very fraud it was intended to prevent." In N. Y. Life Ins. Co. v. Fletcher, 117 U. S. 519, the assured and the insurer were both innocent (the application was signed by the assured) and it was held the policy should be canceled and the premiums returned. Where inaccuracies in the representations of the applicant are known by a general agent, either before or after the execution of the policy, it is good notice to the company, and where the agent acts with such knowledge the defense which the company would otherwise have to an action on the policy is waived. Hamil- ton v. Home Ins. Co., 94 Mo. 353. Contra, Ins. Co. v. Martin, 8 Ins. L. J. 134; s. c., 40, X. J. Law, 568; McCoy v. Ins. Co., supra; Smith v. Ins. Co., supra. But in the case of a special agent it is always a question as to the scope of his authority, and notice to him would not be sufficient if a waiver of any of the rights of the company was beyond hi& power. Devens v. Ins. Co., 83 N. Y. 168. An agent, of course, binds his company by representations made within the general scope of his authority, unless the insured knows that the agent is exceeding his powers, and also, with the same limitation, by his mistakes or express waivers. New Eng., etc., Ins. Co. v. Schettler, 38 111. 166, 171; Silverberg v. Ins. Co., 67 Cal. 36, 41; Gladding v. Ins. Co., 66 id. 6, 8. 13. A policy contains a clause to the effect that the person who procures the insurance shall be deemed the agent of the insured and not of the company. Can an agent, so acting, hind the com- pany by iraivers or representations? Yes. The facts cannot be changed by such a stipulation, and where a duly appointed agent acts in behalf of the company it is bound if he is within the scope of his authority. Putnam v. In?. Co., 18 Blatchf. (U. S.) 368; Deitz v. Ins. Co. (W. Va.), 8 S. E. Eep. 616; Carson v. J U s. (.V. 43 N. ?. Law, 300; s. c., 39 Am. Rep. INSURANCE. 243 . 584. Contra, Brown v. Ins. Co., 59 ft". H. 298; Shawmut, etc., Co. v. Stevens, 9 Allen (Mass.), 332; Gladding v. Ins. Co., 66 Cal. 6. 14. A policy provides that no condition thereof shall be waived, except upon the indorsed consent of the company. An agent., in violation of one of the conditions of the policy, writes insurance on a vacant house and forwards the premium to the company, who retains the same. Can the insured recover on . the policy? Yes. In spite of the provision as to a waiver, the condition would be waived. Haight v. Ins. Co., 92 ft. Y. 51. And such a provision in general, will not protect a company if an agent, otherwise competent, has waived any of the conditions. Carson v. Ins. Co. (ft". J.), 39 Am. Bep. 584; American, etc., Ins. Co. v. McCrea (Tenn.), 41 id. 647; Ind. Ins. Co. v. Capehart, 108 Ind. 270; M. I. F. Ins. Co. v Gusdorf, 43 Md. 506. A provision of this sort has even been held to be invalid and without force, whether waiver or not, on the ground that it was not a limitation on the authority of any particular agent or class of agents but upon the capacity of the corporation for future ac- tion. Lamberton v. Ins. Co. (Minn.), 39 ft". W. Rep. 76; Bartlett v. Ins. Co. (Iowa), 41 id. 601. And there are many authorities to the effect that such a provision as to a waiver may itself be waived. Carr v. Ins. Co., 60 ft". H. 513. V. REINSURANCE. 15. What is reinsurance and what is the liability of the re- insurer? Reinsurance is where the first insurer reinsures the risk in another company. It is a contract entered into merely for the protection of the first company, and the insured has no rights in the matter whatever. Lee v. Ins. Co., 1 Hardy (Ohio), 217, 231; Strong v. Ins. Co., 62 Mo. 289, 299. The liability of the reinsurer is the same as that of the original insurer, and if the policy is void as against the insurlr it will also be void as against the reinsurer, ft". Y. etc., Ins. Co. v. Ins. Co., 1 Story (U. S.), 458. And to recover against the reinsuring com- pany, the first company must make such proof as the insured is required to make. Yonkers, etc., Ins. Co. v. Hoffman Ins. Co., 6 Rob. (X. Y.) 316, 320. It has been held, however, in New York, that furnishing the r/roofs of the original insured is sufficient, (Bowery F. Ins. Co. v. Ins. Co., 17 Wend. 359): and in Jackson v." Ins. Co.. 99 ft". Y. 124, 130, it was held that the reinsuring company could not defend an acti. n on account of a misrepresentation made in ob- taining the original policy. 244 QUESTIONS AND ANSWERS. This is certainly true where a judgment has been recovered against the first company in an action which the reinsuring com- pany was notified to defend. Strong v. Ins. Co., 4 Mo. App. 7. In applying for reinsurance the original company must, of course, make known any facts within its knowledge which are material to the risk, and in all ways comply with the requirements laid upon any applicant. VI. REMEDIES. 16. The terms of a contract of insurance have been fully set- tled, but the policy has not been issued. Has the insured any rights if a loss occurs? Yes. He may recover upon the policy. Sheldon v. Ins. Co., 25 Conn. 207; Humphrey v. Ins. Co., 15 Blatchf. (U. S.) 35, 504. There must be conclusive evidence, however, that the contract was actually made. Suydam v. Ins. Co., 18 Ohio St. 459. 17. A policy has been issued which,' by mutual mistake, does not conform to the real agreement of the parties. Would the in- sured have any right in case of loss? Yes. Such a policy may be reformed in equity, even after loss has occurred, and damages will be decreed in the same case. Hammel v. Ins. Co., 50 Wis. 240; Phoenix Ins. Co. v. Hoffheimer, 46 Miss. 645. Such a mistake, however, must be proved conclusively, and must be mutual or induced by the fraud of one of the parties, fcnell v. Ins. Co., 98 U. S. 85. Where, -by fraud or mistake, a policy has been issued injurious to the company, it also may obtain a decree in equity, requiring a redelivery and cancellation of the policy; Imperial Ins. Co. v. Gunning, 81 111. 236; and that, too, even after an assignment of the policy for value, without notice. British Eq. Assur. Co. v. Great W. Ey. Co., 20 L. T. (N. S.) (L. R.) 422. After a loss, however, the proper course for the company is to de- fend the action upon the policy. Phoenix Ins. Co. v. Bailey, 13 Wall. (U. S.) 616; 18. A company is required by law to keep on hand $50,000 for the payment of losses. The company does not comply with the requirement, and is practically insolvent. What is its lia- bility? In such a case the company is liable to every policy-holder for a breach of its duty, and the damages for such a breach would be the value of the policy, according to the insurance tables, showing the average expectancy of life. People v. Ins. Co., 78 X. Y. 114. INSURANCE. 24o 19. A., intending to commit suicide, insures his life in his wife's favor before doing so. Could the company defend an action by the wife? Suppose the wife killed her husband to get the insurance? Where the policy is negotiated with the intent to commit suicide, it cannot be enforced, any more than where a man burns his prop- erty. And this would be the result, even though there was no stipulation for the avoidance of the policy by suicide. Smith v. Xat. Ben. Assn., 4 X. Y. Supp. 521. In the second case, the wife, being no party to the contract, cannot be said to violate any condition of the policy, express or implied, but public policv would prevent her from recovering. X. Y., etc., Co. v. Armstrong, 117 U. S. 591. 20. A fire insurance policy contains a clause giving the com- pany the right to cancel the policy at any time. Is such a clause enforceable ? If loss is imminent cancellation is not allowed, but in other cases such a clause is binding upon the insured. The company must, of course, return the unearned proportion of the premium. Home Ins. Co. v. Heck, 65 111. 111. Xotice, without a return or offer to return the unearned" premiums, amounts to nothing. Hathorn v. Germania Ins. Co., 55 Barb. (N . Y.) 28". 21. Can an insurance company enforce a provision which limits the time within which an action upon its policy must be brought? Suppose the time is less than that allowed by the Statute of Limitations? Such a provision can be enforced, regardless of the Statute of Limitations, and the expiration of the time fixed by it is an absolute bar, unless the time is so short as to raise the presumption of fraud. Six months after cause of action arose has been held a reasonable limitation. Brown v. Ins. Co., 24 Ga. 97, 101. So, also, one year after date of fire. Thompson v. Phoenix Ins. Co., 25 Fed. Rep. 296. And when such a stipulation is set up, the insured is barred, even if he shows that in an action actually begun within the time speci- fied he has been nonsuited, or that such an action has been discon- tinued or a judgment therein stayed. Brown v. Ins. Co., 7 R. I. 301; Arthur v. Ins. Co., 78 N. Y. 462. There may, however, be a good excuse for not bringing suit within the specified time, as when war breaks out and prevents; Semmes v. Ins. Co., 13 Wall. (U. S.) 159; or where the performance in good faith of conditions precedent to payment takes more time than that allowed; Longhurst v. Ins. Co., 19 Iowa, 364, 370; or where the delay is owing to the fault of the company. Day v. Ins. Co. (Me.), 16 Atl. Eep. 894. 246 QUESTIONS AND ANSWERS. The companies also have the power to provide that no suit shall be brought until the expiration of a certain time after loss. John- eon v. Ins. Co., 91 111. 92. Where, however, there is an express denial of liability, it has been held, even under such a provision, that suit may be brought at once. Aetna Ins. Co. v. Maguire, 51 111. 342. But see Hatton v. Ins. Co., ? U. C. C. P. 555, contra. See also Contracts, Question 40. 22. A policy contains a stipulation that in case of the failure of the parties to agree upon an adjustment, the matters in dis- pute shall be arbitrated. Is the stipulation binding? No. In spite of such a stipulation, suit may be brought in the courts. Parties cannot thus substitute another tribunal for those which the law has established, or deprive the courts, so established, of their jurisdiction. Stephenson v. Ins. Co., 54 Me. 55, 70; Ger- man-American Ins. Co. v. Etherton (Xeb.), 41 N. W. Eep. 406; Eobinson v. Ins. Co., 17 Me. 131. Where, however, the act incorporating the company contains a provision in regard to enforcing a claim against the company, such a provision will be recognized. Thus, a stipulation in a charter, that execution shall only be levied after a specified time, has been held to be binding. Judkins v. Tns. Co., 39 N. H. 172. Of course, where the provisions of the policy are simply for the reference of special matters and do not divest the courts of jurisdic- tion, but simply raise a condition precedent to the insured's right to recover, they will be enforced like any conditions precedent. Scottish, etc., Ins. Co. v. Clancy (Tex.), 8 S. W. Eep. 630. And even where the stipulation could not originally be enforced, it is binding, if it is ratified or entered into by the parties, after loss. Kill v. Hollister, 1 Wilson, 129. PARTNERSHIP*. I. THE CREATION OF A PARTNERSHIP. 1. How does a partnership differ from a corporation? There are three conspicuous differences: 1. In a partnership the 'delectus personalis is the important con- sideration. A partner is chosen for his personal qualifications, and his interest is not transferable, except by consent of all the other partners. So also, if a partner dies, the firm must be wound up. Brenner v. Hirsche (Miss.), 13- So. Kep. 730. In a corporation the condition is quite the reverse. Shares are transferable, and the death of a shareholder has no effect unon the corporation. 2. In a partnership any partner has the legal power to act for the others, and, wifliin the scope of the business, to absolutely bind them by his action. In a corporation, no shareholder has any power to bind the others. The whole authority rests with the board of directors. 3. In a partnership, each partner is liable for all of the firm debts. In a corporation the liability of the stockholder, * aside from statute, is only to pay money up to the par value of the stock sub- scribed for, and to this feature the growth of corporations in the past few years is largely due. Many partnerships have been in- corporated with practically no other change. Cf. Corporations, Ques. 2. 2. Does a participation in the profits of a firm make a man a partner? How has the law on this point developed? The principle was stated in 1793, and survived for years, that a man who shares in the profits is a partner, and must share the losses, regardless of the real intention of the parties. This was made the sole test. Waugh v. Carver, 2 H. Black. 235. It was there argued that by taking a part of the profits a man took part of that fund which is the proper security of the creditors. This principle produced the anomalous result of holding even a clerk a partner, if his salary depended upon the profits. In 1808 the idea was somewhat refined by holding that a man was a partner if he shared in the net profits, but not if he shared in the gross profits. Day v. Boswell, 1 Camp. 329 (1808). 24: 248 QUESTIONS AND ANSWERS. This whole principle was finally repudiated, however, when it was seen how extreme the results were. In Cox v. Hickman, 8 H. of L. Caa. 268, decided in 1860, a receiver for the benefit of cred- itors entered into an agreement with all the creditors by which they were to be paid pro rata from whatever profits were made. The effort to hold ail the creditors as partners resulted in the final overthrow of AVaugh v. Carver. In Bullen v. Sharp, L. R. 1 C. P. 86, again, Bramwell, B., says on p. 128, referring to AVaugh v. Carver, " The Chief Justice * * * puts his decision on the ground that ' he who takes a moiety of all the profits indefinitely, shall, by operation of law, be liable to losses/ Let us hope that this notion is overruled, one which I believe has caused more injustice and mischief than any bad law in our books." By these cases the result was reached in England, that where a man loaned money to a firm and was to be paid from the profits, he was in no sense a partner and so in case of insolvency couM come in with firm creditors in competition for the firm assets. The court saw no middle ground between holding him liable for losses as a partner, and allowing him to prove as a creditor. It seemed unjust, however, that he should compete with firm creditors for money which had been used to raise the credit of the firm, and the statute of 28 and 29 Vic., chap. 86, 1, known as Bovill's Act, was passed and provided that the lender under such circumstances was a postponed creditor and could only get hi,s money after other creditors were paid. This is certainly the right result and is reached in the proper way. In a number of the States, the principle of Cox v. Hickman has been followed and a lender is not held as a partner whether he re- ceives a proportion of the profits or not. Boston Smelting Co. v. Smith. 13 R. I. 27; Smith v. Knight, 71 111. 148; Williams v. Saut- ter, 7 Iowa, 435; Harvey v. Childs, 28 Ohio St. 319; Hart v. Kelly, 83 Penn. St. 286. See also Edwards v. Tracy, 62 id. 374, 380; Meehan v. Valentine, 12 Sup. Ct. Rep. 972. In some of these juris- dictions, it may even be possible that the lender would not be postponed. In many of the States, however, the lender who receives a propor- tion of the profits has been held absolutely liable as a partner in accordance with the principles of AVaugh v. Carver, and then, to avoid the results of such a principle, statutes have been passed by which a lender under such circumstances may be made simply a limited partner and liable to -lose only what he puts in, if he gives proper piiblicity to his real relations with the firm. Thus, the same result is reached as in England, though, it would seem, in an unscientific way. The following decisions follow AVaugh v. Carver, and render a limiting statute necessary. Parker v. Canfield, 37" Conn. 250: Pettee v. Appleton, 114 Mass. 114; Leggett v. Hyde, 58 K Y. 272. But see Eager v. Crawford, 76 id. 97; Burnett v. Snyder, id. 344. PARTNERSHIP. 249 3. What is the supposed " agency " test of the existence of a partnership? The " agency " test was started by the case of Cox v. Hiekman, 8 H. of L. Cas. 268. Lord Wensleydale there said, p. 312: " The law as to partnership is undoubtedly a branch of the law of principal and agent; and it would tend to simplify and make more easy of solution the questions which arise on this subject, if this true principle were kept in view." The law of partnership, however, is no branch of the law of agency, and Jessel, M. R., very properly criticised' the above statement in Pooley v. Driver, L. R. 5 Chan. Div. 458. He there says, p. 476: " Then Lord Cranworth goes on to speak of agency, and I am almost sorry that the word ' agency ' has been introduced into this judgment, because, of course, every- body knows that partnership is a sort of agency, but a very peculiar one. You cannot grasp the notion of agency, properly speaking, unless you grasp the notion of the existence of the firm as a separate entity from the existence of the partners. * * * But when you get that idea clearly, you will see at once, what sort of agency it is. It is the one person acting on behalf of the firm." Agency, therefore, results from partnership, not partnership from agency. Agency for a firm, like a division of profits, is an attribute of partnership, but serves as no very valuable test. Where, however, you can be sure that there is a " separate entity " in which the title to the partnership property vests, the existence of a partnership is a certainty. In large concerns, firm property is a necessity, but in many joint ventures which cover but a short time or a single joint enterprise it would be contrary to all of the intentions of the parties to hold them partners. French v. Styring, 2 C. B. Rep. (N. S.) 357. But even when the firm exists, there is a limit to the power of the partner to bind the firm. His, authority is limited to the kind of contracts the firm was formed to enter into. The partnership re- lation also limits his powers. Thus, in a firm of three, two of the partners cannot contract to admit another man into the firm. Bur- nett v. Snyder, 76 X. Y. 344. 4. Why cannot one partner sue another on a firm transaction, as, e. g., for money loaned the firm? The obstacle to the suit is that the firm is really the debtor. The English law, contrary to that of Europe, does not recognize the legal entity of a firm., and instead of the firm, therefore, both partners would have to be the parties defendant. But by the common law a man cannot be both plaintiff and defendant in the same action. Estes v. Whipple, 12 Vt. 373; Thayer v. Buffum, 9 Pick. 398. On the continent, if a partner is a creditor of the firm he may sue and recover the amount due him from the firm. $ee Story on Partnership, (Ed. 2), chap. 8, 1. ~50 QUESTIONS AND ANSWERS. II. QUASI OR NOMINAL PARTNERS. 5. A., the sole owner of property, represents that B. is his partner, and business is carried on under the firm name of A. & B. Both A. and B. fail Should the creditors of A. or those of the ostensible firm have a preference in the satisfaction of claims out of the firm property, i. e., stock in trade and book accounts? A. having represented that the property belonged to the firm would not be allowed to deny that fact, and, of course, a creditor could sue A. and B. as partners on a firm debt, and satisfy his claim on execution out of the property of the ostensible firm. This is entirely upon equitable grounds, however, and the right of A.'s individual creditors to the property cannot be denied since the property actually belonged to him personally. They, therefore,- . a hona fide vendee of the true owner was pro- tected i'i his nnrehHse against the claims of firm creditors. Contra : Still v. Focke, 68 Tex. 716: Baylor County v Craig, 69 id. 330. PARTNERSHIP. 251 Holmes v. Jarret, Moon & Co., 7 Heisk. (Tenn.) 506; Schumpert v. Dillard, 55 Miss. 348; Beaman v. Whitney, 20 Me. 413; Morse v. Carpenter, 19 Vt. 613; Shearer v. Shearer, 96 Mass. 107, 111; Tarbel v. Bradley, 7 Abb. N. C. (X. Y.) 273, 279. In Tarbel v. Bradley (supra), at p. 281, it was held the recording of a mortgage, made by one of the partners, of his interest in part- nership property was not notice to a subsequent purchaser, as the mortgage was not " a conveyance affecting real estate " under the Eecording Acts; and as it was not a mortgage of "goods and chat- tels '' under the statute, it was not -a chattel mortgage. Compare Van Brunt v. Applegate, 44 X. Y. 544. It has also been held, that a deed. from A. to X. Y. & Co. was wholly inoperative to pass the title and that it still remained in the grantor. Tidd v. Rines, 26 Minn. 201, 211. In some other jurisdictions it is held, that such a deed conveys title only to X. and Y., the persons whose names appear in the firm style; Gossett v. Kent, 9 Ark. 602, 607; Winter v. Stock, 29 CaL 407, 410; Moreau v. Saffarans, 3 Sneed, 595; and that the deed of X. and Y. will convey a good and valid title. Winter v. Stock (supra). On principle it would seem that title should vest in all parties described by the firm, name, on the same ground that all parties described are parties in the case of a bill of exchange, and it is so held in several States. Sherry v. Gilmare, 58 Wis. 324, 332; Brunson v. Morgan, 76 Ala. 593. Georgia, Minnesota, Kan- sas and Xorth Carolina also support this view. The title really shpulfl vest in the firm itself, as it does in France, where the entity of the firm is recognized. Such a result, however, can only be reached by statute in this country. b. Survivorship of the Legal Title. 7. A. and B. are partners. A. dies. Can B. sell the firm property and give good title thereto? Yes. The legal title vests in the survivor, and he can pass it, but only for the proper purposes of winding up the partnership. He is regarded, in equity, as a trustee for the estate of the deceased. Martin v. Crump, 2 Salkeld, 444; Xicklous v. Dahn, 63 Ind. 87; Daby v. Ericsson, 45 X. Y. 786, 789. The survivorship of the legal title* is held, however, to apply only te chattels and choses in action and does not extend to land. In the case of land practically all of the States have passed statutes making partners tenants in com- mon of all land conveyed to them, and survivorship is not one of the incidents of tenancy in comrfion. c. The Partner's Interest in Firm Property. 8. Upon the death of a partner, what right 'has his representa- tive to the firm property? He has no right whatever to the firm property. His only right is one of an accounting, against which the Statute of Limitations to 252 QUESTIONS AND ANSWERS. personal actions will run. Knox v Gye, L. K. 5 H. of L. 656; King v. Wartelle, 14 La. Ann. 740. "When the statute begins to run, however, is a question decided differently in many jurisdictions. Some States, among them Illi- nois, Louisiana and Virginia, hold that the statute begins to run from the time of dissolution. Pierce v. McClellan, 93 III. 245. Georgia, West Virginia, Tennessee and Pennsylvania hold that 'ithe statute does not run so long as any debts are due to or from the llirm. Miller v. Harris, 9 Baxt. 101. Similarly, in Alabama, Ar- kansas, Maryland, Michigan and New Jersey the statute runs from the time of the last transaction. Brewer v. Brown, 68 Ala. 210. In New York, the statute begins to run as soon as the surviving partner is in default, but does not begin at once upon dissolution. For a good discussion of the subject, see Gray v. Green, 41 Hun (JN. Y.), 524. The matter is more accurately understood, if one keeps in mind the fact that it is really not the representative of the deceased partner, but the firm, considered, in equity at least, as an entity, which has the claim against the surviving partner, who holds the legal title in trust for the firm. On principle, therefore, as in the case of any trust, the statute ought not to begin to run until the trustee, i. e., the surviv- ing partner, shows some repudiation of the trust relation. 9. A. wishes to sever his partnership relation with B. I& he entitled to a division of the firm property in specie? In most of the States a division in specie would be allowed, on the ground that the property belongs to the partners personally, and not to the firm considered as an entity. Hughes v. Devlin, 23 Cal. 501; King v. Wartelle, 14 La. Ann. 740; Greene v. Graham, 5 Ohio, 264. This idea, however, has produced ver*- conflict- ing decisions. See, for example, Tarbel v. Bradley, 7 Abb. N. C. (N. Y.) 273-284. 10. A., of the firm of A. & B., dies. The firm property con- sists of both realty and personalty. IIoiv ivill it be obtained by A.'s representatives? The personal property would be sold and divided and Ax's execu- tor would receive his proportionate share. The realty, however., would not be converted into personalty, except for the purpose of adjusting the affairs of the partnership. A.'s heirs are held to have title to A.'s share of the specific land owned by the firm. Shearer v. Shearer, 98 Mass. 107; Hewitt y, Rankin, 41 Iowa, 35, 39. PARTNERSHIP. 253 11. The firm of A. & 1L being solvent, A. transfers his entire interest in the firm assets to B., who agrees to pay the firm debts. What effect would this have upon the claims of firm creditors? By the transfer, the firm would be dissolved, and firm creditors would no ledger have a right against the firm assets, as such, as they had become the separate assets of the single partner. Ex 'partc Euffin, 6 Yes. Jr. 119. Such a transfer, however, does not relieve the retiring partner from the obligation of paying firm debts, and, assuming good faith, such a transfer, by which all of the firm property is put beyond the immediate reach of firm creditors, should only be allowed when the creditors are still amply protected by the amount of property belonging to the partners. Ex partc Williams, 11 Yes. Jr. 3; Griffith v. Buck, 13 Md. 102; Menagh v. Whitwell, 52 N". Y. 146, 159. d. Transfer of a Partner's Interest. 12. A., being one of five partners, transfers all of his interest to X., a stranger. What effect would this have upon the claim of firm creditors against firm assets? The rights of creditors would not be affected at all. X. would only obtain bv the transfer a right to an account and a share in the profits of the firm. Menagh v. Whitwell, 52 N. Y. 146, 159. e. The Interest Passing to the Representative of a Deceased Partner 13. A. and B., partners, purchased real estate for firm pur^ poses. Upon A.'s death, what right has his widow to the realty? She only has a right after the firm debts have all been paid. Such realty is treated in equity as vesting in the partners, in their partnership relation, with the implied trust that it shall be used first for firm purposes. Dyer v. Clark, 5 Met. 562. See also Qiies. 10, supra. f. The Interest Passing to the Assignee of a Bankrupt Partner. 14. A., a member of the firm of A. <$ E., becomes bankrupt and assigns. What right has the assignee to the firm prop- erty? It is held that the assignee has " no right to take the partner- ship property, except the share and interest of the insolvent, after th: payment and satisfaction of the partnership debts." Fern v. Cashing, 4 Cush. (Mass.) 357. This result is reached by courts which in terms repudiate the entity theory of a firm, and yet such a result is impossible on common-law principles. If the partners are regarded as co-owners the assignee must obtain a right to the property itself which belonged to his assignor. Such is the result in England. Button v. Morrison, 17 Yes. 193-203. 254 QUESTIONS AND ANSWERS. g. What Interest can be Jleached by the Partnership Creditors and the Separate Creditors of a Partner Respectively. 15. A. and B. are partners. X. obtains judgment against A. individually, and execution issues. Can the sheriff seize th\ firm property to satisfy the execution? In many States the sheriff may seize the entire leviable prop-, erty of the copartnership, and sell as much ol the interest of th<* individual judgment debtor as is needed to satisfy the execution Smith v. Orser, 42 N. Y. 132; 'Branch v. Wiseman, 51 Ind. 1; Clarke v. Gushing, 52 Cal. 617. But see, contra, Keinheimer v. Hemingway, 35 Penn. St. 432, 437. In most States, however, equity will intervene by injunction at the instigation of the copartners to stop such a sale of partnership property. Instead of a sale a receiver will be appointed and the partnership accounts taken, in order that the real interest of tho debtor partner in the proceeds may be determined. That interest only can be taken on the execution. In California, Connecticut, Mississippi and Minnesota, however, an injunction will not be granted. 16. A., B. and C. are partners and are sued by X. on a firm debt. B. and C. defend successfully on the ground of infancy,. and X. gets judgment against A. alone. Can the sheriff sem firm property to satisfy the execution? Yes. Though the courts persistently maintain that the property belongs to the three, they will allow the satisfaction of a firm debt on an execution against onlv one under the above circumstances. Whittemore v. Elliott, 7 Hun (N. Y.), 518, 520. So also, where an action is brought against several partners, and has to be discontinued against one, on the ground that he is out of the jurisdiction. Though the judgment is not against all of the partners, firm property can be taken on execution. Inbusch v. Far- well, 1 Black (U. S.), 566. It has been held, however, that a partner has no implied au- thority to confess judgment and bind his copartners; such a judg- ment binding only the partner confessing; and in an execution upon it, only the confessing partner's separate interest in the partnership property can be seized and sold. Rhodes v. Amsinck, 38 Md. 345. 353. These results are eminently just. It should always be possible to collect a firm debt out of firm property. But where courts logi- cally follow the common-law principles and refuse to recognize a. firm entity, such decisions are perfectly impossible. If property belongs to A., B. and C., the whole of it cannot be sold to satisfy a judgment against A. alone. This is simply one of the many ' where the court has to act upon the entity theory, to do simple justice, whether they recognize the fact or not. PARTNERSHIP.- 255 IV. THE SEPARATE PROPERTY OF A PARTNER, AS AFFECTED BY THE PARTNERSHIP RELATION. a. Its Liability to Process in Actions for Firm Debts. 17. A., B. and C. are sued on a partnership debt and judg ment is obtained against them. Can the judgment creditor at iach the personal property of A. without exhausting the firnt. property first? Yes. So long as the courts refuse to regard the firm as an entitj , and proceed upon common-law principles of holding partners liabL both jointly and severally, the separate property of a partner can be taken on execution in such a case as the above. Meech v. Allen, 17 N. Y. 300-303; Cumming's Appeal, 25 Penn. St. 268. New Hampshire is perhaps the onlv State contra. Miles v. Pen- nock, 50 N. H. 564. Such a result, however, is hard on the separate partner, and gives the firm creditor more protection than he needs. He doe.s not need the right to proceed against the separate property of i partner when there is an abundance of firm property, but in the- present condition of the law the partner is powerless to object, and even equity cannot intervene except at the request of a creditor of the separate partner, who must show that there is sufficient firm property to satisfy the firm creditor. Ex parte Kendall, 17 Ves. 513, 520 quoted in Meeoh v. Allen, 17 N. Y. 3.00, 304. b. Distribution of the Separate Property of a Bankrupt Partner. IS. A., a member of the firm of A. & B., fails. Can a cred~ itor of the firm obtain a dividend out of the separate estate o f A.? As a general principle, he cannot. The rule in bankruptcy i that firm creditors must be. paid out of firm assets and separata creditors out of the separate assets of the individual partner. A firm creditor can only secure a dividend from the property of a separate partner when there is a deficiency in firm assets and tha creditors of the partner have been paid in full, and similarly when a separate creditor of a partner seek.- satisfaction from firm asset?. Section 36, U. S. Bankruptcy Act, U. S. Rev. Stat, 5121. Li the above case, therefore, unless those facts existed, the cred- itor could obtain no dividend. Both classes of creditors can, however, proi'c their claims against the assets of the opposite class, to receive dividends only in the case of a surplus. Ex parte Elton, 3 Ves. Jr. 238. It has been held, however, that where there is no firm property, and- no living solvent partner, both firm creditors and separate creditors of the bankrupt partner may prove //'/// tio.^ii. H Pease, 13 X. B. R. 168: PC Litchfield. 5 Fed. Rep. 47 : Brock v. Bateman, 25 Ohio St. 609. The weight of authority, however, under the Bankruptcy Act of 1898, is against this exception to the rule. See Bankruptcy. Question 5 and cases cited. 256 QUEST-IONS AND ANSWERS. c. Distribution of the Separate Property of a Deceased Partner. 10. A. and B. are partners. A. dies. Can a firm creditor resort to the assets of the deceased partner in the first instance? In almost all jurisdictions he can. The principle has been broadly s'tated by the English courts, that " in the consideration of a court of equity, a partnership debt is several as well as joint." Wilkinson v. Henderson, 1 Myl. & K. 582, 588. A firm creditor may, therefore, in equity proceed against the assets of the deceased partner at once, treating the obligation as several. In almost all of the States also, this idea has been followed, though it would seem to be erroneous. A partnership obligation must be just what the parties intended it to be, and if it is only joint at law, there is no reason why it should be joint and several in equity. It also seems glaringly unjust to subject the estate of the deceased partner to the payment of firm debts, regardless of the fact that there are firm as- sets. This line of reasoning has led to the overruling of the Eng- lish cases in New York, Ohio, Iowa, Georgia and Wisconsin. Voor- his v. Baxter, 18 Barb. (N. Y.) 592; Daniel v. Townsend, 21 Ga. 155. Even in England, where the rule is absolutely fixed as to the right to proceed against the estate of a deceased partner, the lia- bility of a partner is not considered several under any other cir- cumstances, and. the error in holding it so in the case of the death of a partner has been well demonstrated. Kendall v. Hamilton, L. R. 4 App. Cas. 504, 516, 520, 535, 537. V. THE RELATION OF DEBTOR AND CREDITOR BETWEEN A PART- NERSHIP AND A PARTNER. a. Where a Partner is Debtor to the Partnership. 20. A., B. and C. were partners. A. borrowed money from Hie firm for private purposes, and then failed. Would the firm l>e allowed to prove against the separate estate of A.? A firm or an individual partner can never prove against the estate of one of its members, with two exceptions. One is where the partner has acted fraudulently. Lodge and Fendal, 1 A T es. Jr. 166; Re McLean, 15 N. B. R. 333; Re Hamilton, 1 Fed. Rep. 800, 812. The second exception is where all the creditors of the firm have been paid. A partner is then allowed to prove against the estate of a bankrupt copartner. Ex parte Taylor, 2 Rose. 175; Amsinck v. Bean, 22 Wall. (U. S.) 395; Olleman v. Reagan, 28 Ind. 109, 111. Such a course is generally not al- lowed, for the reason that the partner is competing with the firm creditors, i. e., is diminishing the probability of there being a sur- pius of separate assets for firm creditors. PARTNERSHIP. 257 The reason given for not allowing a firm to prove against the estate of one of its members is, that if A.. B. and C., as partners, are al- lowed to sue A. individually, the latter is both plaintiff and defendant in the same case, which is impossible. And yet, in the case of fraud, the courts do allow just such a so-called absurdity. This simply goes to show one of the many ways in which the courts are hampered by re- fusing to look at a firm in a mercantile light, and to realize that the firm really is a separate entity, from which a partner can borrow, accord- ing to every understanding of business men. Once this idea was ac- cepted by the courts, a firm could sue a partner, or be sued by him, without any difficulty. 21. A. gives a note to his firm, A., B. and C., for money 'bor- rowed, and the firm gives a note to B., the other partner, for money due him. Both notes are indorsed to X. Can lie bring suit on them? Yes. Though a firm could not sue a partner on his note, nor could a partner sue his firm, yet both notes may be enforced in the hands of an indorsee. Woodman v. Boothby, 66 Me. 389; Nevins v. Townsend, 6 Conn. 5; Ames, Gas. on Partnership, p. 418, note 4, cases collected. b. Where a Partner is Creditor of the Firm. 22. A. loans money to his firm A. & Co. Upon the bank- ruptcy of the firm, and the other partners, what rights has he to prove his claim for the money so loaned? Where the partner has loaned in fact, he can not prove in competition with the firm creditors, but can prove after them and ahead of the creditors of his copartner. As a rule a partner cannot compete with creditors of the firm. There are four exceptions. 1st. Where separate property of one partner has been fraudu- lently dealt with as firm property. Ex partc Westcott, 9 Ch. App. f,26;*;r parte Kendall, 1 Rose, '71. 'id. Where there are two distinct trades carried on by the firm and by one or more members of it, with distinct capitals. Re Buck- huise. 2 Low. 331; Ex parte St. Barbe, 11 Yes. Jr. 413; Ex parte Sillitoe, 1 Glyn & J. 374. 3d. Where a partner, having been discharged in bankruptcy, be- comes a creditor of the firm, the effect of his discharge being to re- lease him from all individual as well as firm debts. Re Bidwell, 2 N. B. R. 229; Re Leland, 5 id. 222; Wilkins v. Davis, 15 id. 60. 4th. Where the debt sought to be proved arises from an undis- puted contract apart from the copartnership and which was in existence at the time of adjudication of bankruptcy, and where there can by no possibility be any surplus of the partnership estate against 17 258 QUESTIONS AND ANSWERS. which proof is sought. Ex parte Topping, 4 De G., J. & S 551; Ex parte Hill, 2 Bos. & P. (N. R.) 191 (note a); In re Marwick, Z Ware, 229; Ex parte Cook, Montague's Bank Rep. 228. VI. RELATION OF DEBTOR AND CREDITOR BETWEEN Two FIRMS HAVING A COMMON PARTNER. 23. A. & B. owe money to B. & C. A. & B. become bankrupt. Can B. & C. prove the debt against the assets of A. & B.? In actions at law, suit is generally disallowed on the ground that the common partner cannot be both plaintiff and defendant. Benny v. Metcalf, 28 Me. 389; Green v. Chapman, 27 Vt. 236. But in equity the courts do allow suit, and refrain from defeating the intention of the parties. Cole v. Reynolds, 18 N. Y. 74, 77; Re Buckhause, 2 Low. 331. In Cole v. Reynolds (supra), the court quotes with approval 1 Story's Eq. Jur. (13th ed.), 680;. " In all such cases courts of equity look behind the transactions to their substance and treat the different firms, for the purpose of substantial justice, exactly as if they were composed of strangers, or were in fact corporate companies." See Story on Partnership (6th ed.), 235. VII. ACTIONS BETWEEN A PARTNER AND His COPARTNERS. a. A Partner Cannot Sue a Copartner Upon a Partnership Claim, or Partnership Liability. 24. A. loans money to his firm. Can he sue his copartners to recover it? Suppose A. had bought goods from his firm, could he be sued by his copartners? Suit could not be maintained in either case. In the first, the claim is in reality against the firm, not against the copartners; and similarly in the second case, the firm is the creditor, not the co- partners. Springer v. Cabell, 10 Mo. 640; Camblat v. Tupery, 2 La. Ann. 10. b. A Partner May Sue a Copartner Upon a Personal Claim. 25. Upon a partial payment of firm property A. gives B. a note for $5,000. The firm still exists. Can B. suet Yes. The claim has been put into the form of a specialty, and A. and B. are the only possible parties. The existence of a firm then becomes entirely irrelevant. Moreover, as to the $5,000 rep- resented by the note they are no longer partners, and it is no longer firm property, because it has been taken out of the current accounts, separated from the partnership and appropriated to the partner to whom it is due. McSherry v. Brooks, 46 Md. 103, 116; Parsons on Partnership (2d ed.), 290; Rockwell v. Wilder, 45 Mass. 556, 561. PARTNERSHIP. 259 Where the firm is not a party to the contract a partner may sue a copartner, even though the contract relates to partnership business, as an agreement to form a partnership, or to continue it for a fixed period. Powell v. Maguire, 43 Gal. 11; Adams v. Tutton, 38 Penn. St 447, 453; Ames, Cas. on Partnership, 462, cases collected. c. A Partner Cannot Prove in the Bankruptcy of a Copartner in Competition with Firm Creditors. 26. A/s partner, B,, becomes bankrupt and his separate estate is insufficient to pay his individual creditors. Can A. prove an individual claim against B.? Yes. It is true that whenever there is more than enough to satisfy separate creditors a solvent partner cannot prove against the estate of his copartner, unless all firm debts are paid, as he would then be competing with firm creditors by decreasing the surplus which would be left for them. Ex parte Maude, L. R. 2 Ch. App. 550. But when, as in the present case, there can be no surplus for firm creditors, a solvent partner may prove, as he is not then com- peting with firm creditors, but proving for them by increasing his own estate. In re Head, 1894, 1 Q. B. Div. 638,' 641; Ex partc Topping, 4 De G., J. & S. 551. And the partner may even prove in competition with firm cred- itors in the single case, where the claim is founded upon fraud or breach of trust by the bankrupt partner. Ex parte Westcott, L. R. 9 Ch. App. 626. VIII. POWEK OF A PARTNER TO ACT IN BEHALF OF THE FIRM. a. Sealed Instruments. 27. A partner, without any authority from his copartners, executes a deed intending to bind the firm. Is it bound? Sup- pose he had been given parol authority? In England and in a very few of the States, it is held, that a partner must have authority under seal in order to bind the firm by such an instrument; or as the rule is commonly expressed, the authority to execute a sealed instrument must be of equal formality. Harrison v. Jackson, 7 Term Rep. 207; Re Lawrence, 5 Fed. Rep. 349. 354. But in this country it is almost universally held that the firm is bound by a deed, if there was a previous express authority for its execution or a subsequent express ratification by the copartners, even if such authority be only parol. Gwinn v. Rocker, 24 Mo. 290; Stillman v. Harvey, 47 'Conn. 26; Ames, Cas. on Partner- ship, p. 494, cases collected; also Vol. I Am. Lead. Cas. (Hare & Wallace, 5th ed.) 5,54-555. Though settled law, this must be regarded as an unprincipled compromise. Either the partner 260 QUESTIONS AND ANSWERS. should have implied authority to execute a deed and bind the firm thereby, as he could bind it in most other transactions, or the strict rule of requiring authority under seal should be applied as in the case of agency. See Agency, Ques. 26, supra. There is no principle in simply requiring express authority. This limitation, however, upon a partner's implied power to dispose of firm prop- erty for firm purposes is confined to property which is transferable only by deed. When the instrument has the same effect without a seal, as in the case of personal property, the seal will be treated as a nullity. Dubois's Appeal, 38 Penn. St. 231, 236; George v. Tate, 102 U. S. 564, 569. 28. A., without authority, executes a sealed instrument in the name of his firm. Has it any binding force whatever? It would, of course, have no binding force upon the firm (Ques. 27, supra), and on strict principle the instrument should be a nullity, as the partner had no authority to act for the firm, and no intention to act personally. But in accordance with the com- mon-law conception of a partnership, the partner who executes is usually held to be bound personally. Gates v. Graham, 12 Wend. (N. Y.) 53; Harrison v. Jackson, 7 Term Rep. 207; Re Lawrence, 5 Fed. Rep. 349, 354; Snyder v. May, 19 Penn. St. 235, 239; Hos- kinson v. Eliot, 62 id. 393, 402. But in Fisher v. Pender, 7 Jones (X. C.), 483, one of two partners signed the firm name to a bond, and it was held the firm was not bound, because the partner had no authority to bind the firm, and the partner himself was not bound, as it was not executed as his deed, but was executed and delivered as the deed of another. In such a case as the above, the sealed instrument is also held binding upon the firm when the instrument purports to be that of the firm, but the seal is opposite the name of the partner only. It is then treated as a simple contract merely, with the sealed attestation of the execut- ing partner. Cram v. Bangor House, 12 Me. 354, 358. The firm may also, at times, be held independently of the in- strument upon a quasi contract, where the firm obtains money or goods in exchange for the sealed instrument. Walsh v. Leunon, 98 111. 27, 30; Daniel v. Toney, 2 Met (Ky.) 523. b. Bills and Notes. 29. State, in general, the obligation of the members of a part- nership raised by negotiable paper executed by one partner in the firm name. It is settled law that paper issued by one partner, either actually or ostensibly for partnership purposes, binds the firm. The power in each partner to thus bind all his copartners springs from the PARTNERSHIP. 261 very existence of the firm, because it is essential to the conduct of business and is contemplated by all the partners when they embark on the enterprise. 1 Lindley on Partnership, *page 266; Blodgett v. Weed, 119 Mass. 215; Ames, Gas. on Partnership, page 496, cases collected. The exceptions to this broad statement of the rule are based upon obvious reasons. Thus, the rule does not apply to nontrading partner- ships, such as a firm of lawyers, except to a very limited extent. A strict necessity or a usage in similar partnerships must be shown by the plaintiff, for the scope of such partnerships does not carry any implied general authority to issue commercial paper. Smith v. Sloan, 37 Wis. 285; s. c.. 19 Am. Rep. 757; Pease v. Cole, 53 Conn. 53. Again, even in a trading partnership, there is no implied authority for a partner to bind a firm on negotiable paper to pay his individual debt (Dob v. Holsey, 16 Johns. [N. Y.] 34; Levereon v. Lane, 13 C. B. [N. S.] 278t ; nor for purposes unconnected with ordinary business dealings, such as guaranteeing the debt of a third party (Sweetser v. French, 2 Cush. 310); and one who takes such paper knowing the circumstances must show an actual authority or subsequent ratification by the other partners. See cases just cited. If such paper comes before maturity into the hands of a bona fide purchaser for value the partners will be liable to him. Carrier v. Cameron, 31 Mich. 373; s. c., 18 Am. Rep. 192; Freeman's Bank v. Sarery, 127 Mass. 75. 7-8. It is a strict rule, moreover, that the other partners are not bound unless the signature is that of the firm, even if the proceeds actually go to the use of the partnership. Leroy v. Johnson. 2 Pet. 187; Nat'l Bank v. Thomas. 47 N. Y. 15; Ames. Gas. on Partnership, 508, cases collected. .c. Simple Contracts. 80. A. f a partner, borrows money ostensibly for his firm, but uses it personally. The lender acts in good faith. Is the firm liable? Yes. The partner has undisputed power to borrow for the firm, and Ms final use of the money would not change the firm's liability. Wagner v. Freschl, 56 N. H. 495; Kleinhaus v. Generous, 25 Ohio St. 667. On the other hand, if the partner borrows actually and ostensibly as an individual, he alone is liable, though he afterwards applies " the money for the benefit of the firm. Bank v. Sawyer, 38 Ohio St. 339; Wells v. Siess, 24 La. Ann. 178. " A partner may, as such, bind the partnership by any simple contract, the making of which may fairly be said to fall within the scope of the firm business," e. g.: Contracts for services. Carley v. Jenkins, 46 Vt. 721. Hiring property. Stillman v. Harvey, 47 Conn. 26. Contracts for insurance. Hillock v. Traders' Co., 54 Mich. 531. Ames, Cas. on Partnership, p. 538, cases collected. 262 QUESTIONS AND ANSWEKS. 31. The firm of A. & B. is voluntarily dissolved, and a new firm, A. & C., is formed and carries on the business without giving proper notice to the world of the change. X. contracts with the new firm, supposing that he is dealing with the old firm. Whom can he charge and why? Assuming in all cases X. to have no knowledge of the true facts; 1. If X. was a prior dealer he can charge A. & B. on the ground of " equitable estoppel/' X. is entitled to notice of the change. 2. If he was not a prior dealer, and it can be shown that the dissolution and change was advertised, he cannot charge A. & B., as he is then chargeable with notice of the change. 3. If he was not a prior dealer and the change was not advertised, and it is shown that he in good faith entered into the contract, rely- ing on their joint liability (that is, knowing A. & B. were partners once), he can charge A. & B. 4. He can always charge A. & C., as they have received the con- sideration. Scarf v. Jardine, 7 App. Gas. 345. He is, however, put to his election. He cannot hold A., B. and C. See Ames, Gas. on Partnership, p. 541, note 3, " Prior dealers," and cases cited. The requirements of an outgoing partner, in the matter of giving notice of his withdrawal, are most strict He will still be held liable unless prior dealers with the firm have had actual knowledge or spe- cific notice equivalent to knowledge. And those who are not prior dealers are also entitled to treat the firm as continuing, unless the world has received public notice of its termination, as by public advertisements. Where a firm, which remains after the dissolution as the successor of the partnership dissolved, whether carrying on business under the same or a different name, has business relations with a stranger, who has had no dealings with the former partnership, and who had had no knowledge of such partnership, no notice of any kind is necessary to enable the retiring members of the old company to escape liability for such subsequent contracts; but it would be otherwise held, where the stranger had knowledge of the former partnership, but had no notice, actual or constructive, of its dissolution. Swigent v. Aspden, 45 N. W. Rep. (Minn.) 738; Dowzlet v. Rawlins, 58 Mo. 75; Cook v. Slate Co., 36 Ohio St. 135; Bank v. Page, 98 111. 109, 124; Pratt v. Page, 32 Vt. 13; Morrison v. Perry, 11 Hun (N. Y.). 33; Vernon v. Manhattan Co., 22 Wend. (N. Y.) 183, 193; Bank v. McChesney, 20 N. Y. 240; Lovejoy v. Spafford. 93 U. Sf. 43O, 431; Lindley on Partnership (Rapalje Am. ed.). 341, 363: Wade on Notice (2d ed.), 489. 490. In Martin v. Searles, 28 Conn. 43, 47, and Strickler v. Conn. 90 Ind. 469. 471. the plaintiff was not charged with constructive notice, al- though the fact of dissolution was notorious in the community where he was doing business. PARTNERSHIP. 263" The same rules apply where a firm Is dissolved by the bankruptcy of a partner. If proper notice is not given, any contract entered into by the solvent partner raises a claim which may be proved against the -estate of the bankrupt partner. 1 Llndley on Partnership (Rapulje Am. ed.), 212, 577; Story on Partnership (7th ed.), 313. 32. B., of the firm of A. & B., dies, and no proper notice of the dissolution of the firm is given. X., a prior dealer, deals with A. in ignorance of the facts. Can he charge the estate of B.? No. The law is universally settled, that after the death of a partner the surviving partner can bind only himself, and not the estate of the deceased partner, nor the surviving partners. Marlett v. Jackman, 3 Allen (Mass.), 287, 293; Lindley on Partnership {Rapalje ed.), 337; Story on Partnership (7th ed.), 317-319. It is said that death is notorious, but such reasoning is anything but conclusive, and where a partner becomes insane, though the same principle should apply, [Story on Partnership (7th ed.), 295], Lindley on Partnership (Rapalje ed.), 213, 214, 577, is authority for the statement, that if the insanity is not known, the insane partner could be charged. Drew v. Nunn, L. R. 4 Q. B. Div. 661, confirms this statement. In Isler v. Baker, 6 Humph. (Tenn.) 85, it was held, however, that a firm note, issued by a partner after an inquisition of lunacy found against his copartner, could not be enforced against the lunatic partner. 33. X., a dormant partner of " The A. Co./' withdraws. Can he be charged on a contract made after his withdrawal, by a party who was ignorant of the fact that he ever had been a partner? it is generally held that X. could be charged. The firm style implies more than one partner, and the presence of a dormant part- ner, though unknown, would of necessity affect the financial stand- ing of the firm, by the presence of the capital which he had in- vested. Elkinton v. Booth, 143 Mass. 479; Shamburg v. Ruggles, S3 Penn. St. 148. The rule in England and in some States (see Carter v. Whalley, 1 B. & Ad. 11; Warren v. Ball, 37 111. 76) is that you must have actual knowledge of the existence of the dormant partner in order to charge him after withdrawal, but this seems not to be well founded, as it overlooks the influence which a dor- mant partner may have upon the financial standing of the firm, though his presence is not known. 34. A. and B. are copartners. A. becomes bankrupt and after- wards B. sells certain firm property. What rights would A.'s assignees in bankruptcy have against the property? STone. Before the dissolution of the firm by the assignment of one of the partners, either of them had the right to bind the other 264 QUESTIONS AND ANSWERS. by selling firm property, but after such dissolution the solvent partner has the right to wind up the business. No action by the assignee, therefore, would be possible, because the purchaser would get good title. Fox v. Hanburg, Cowp. 445. The power of a solvent partner to transfer firm property in the course of winding up the partnership is well established. Trans- fer by sale; Browning v. Marvin, 22 Hun (X. Y.), 547; Morgan v. Marquis, 9 Ex. 145. Transfer in payment of debts; Wood- bridge v. Swann, 4 B. & Ad. 633. The solvent partner, if honest and competent, and resident within the jurisdiction, has the exclusive right of winding up the partner- ship. King v. Leighton, 100 N. Y. 356, 392. See also Ames, Cas. on Partnership, 561, note 2, cases collected. Similarly in case of the dissolution of the partnership by the death of one of the partners, the surviving partner or partners may transfer firm property by sale or otherwise, for the purpose of winding up the partnership. Manck v. Manck, 54 111. 281; Breen v. Richardson, 6 Cal. 605; Stearns v. Haughton, 38 Vt. 583. See also Ames, Cas. on Partnership, 567, note 3, cases collected. 35. The firm of A. & B. is dissolved, and after the dissolu- tion B. indorses a note held by the firm to X. What rights has X. against the firm? He would have no rights. After dissolution no one of the part- ners can give title to firm paper. All of the former partners must join in the indorsement to make it good. Sanford v. Nickels, '4 Johns. (N. Y.) 224; Fellows v. Wyman, 33 N. H. 351. This result is reached upon the reasoning, that a right to transfer title by indorsement necessarily implies a right to make the former partners liable as indorsers. " It is impossible to separate the right to indorse a bill by one possessing the title, from the legal responsi- bility on all those having an interest in it." Yates, J., Sanford v. Nickels (supra). A partner may transfer firm assets, after dissolution, for any purpose of winding up the firm. Thursby v. Lidgerwood, 69 N. Y. 198, 201. But a right to charge by indorsement is not essential to the winding up of the firm, and, therefore, does not belong to B. It would seem, however, that the courts might have held that title passed by such an indorsement, though it did not operate as a contract liability. This step has never been taken, however, except where the indorsement is of a kind to raise no liability upon the partners as indorsers. For example, a bill may be transferred by a partner after dissolution, if indorsed in the firm name, " without recourse." Yale v. Eames, 1 Met (Mass.) 486; Waite v. Foster, 33 Me. 424, 426. A firm bill negotiable by delivery merely may also be transferred. Tarker v. Macomber, 18 Pick. QIass.) 505, 510. But see, contra, Mc- Daniel v. Wood, 7 Mo. 543. So also in the case of a bill payable to PARTNERSHIP. 265 the firm and indorsed after the death of a partner by the surviving partners. Johnson v. Berlizheimer 84 111. 54. Glasscock v. Smith, 25 Ala. 474, 477, is contra, but not to be supported. 36. One partner, without the knowledge of his copartners, makes a general assignment of firm property for the benefit of creditors. What would be the powers of the assignee? In almost all jurisdictions the assignee would have no powers, unless there were some extreme reasons for the partner's action. It Is beyond the implied power of a partner to make an assignment, whether preferential or not, if his copartners are accessible for consultation. Holland v. Drake, 29 Ohio St. 441; Re Lawrence, 5 Fed. Eep. (N. Y.) 349. The following cases are contra, however: Graves v. Hall, 32 Tex. 665; with preferences, Gordon v. Cannon, 18 Gratt. (Va.) 387; without preferences, High v. Lack, Phill. Eq. (N. C.) 175; Kobin- son v. Crowder, 4 McCord (S. C.), 519, 536; Scruggs v. Burruss, 25 W. Va. 670. In some jurisdictions the fact that a partner is inaccessible is enough to give his copartners the power to make an assignment. Forbes v. Scannell, 13 Cal. 242, 286; Ex parte Daniels, 14 R. I. 500, 501. But see contra, Stein v. La Dow, 13 Minn. 412; Coope v. Bowles, 42 Barb. (X: Y.) 87. 95. The absconding of a partner, however, is evidence of authority to make an assignment. Kelly v. Baker, 2 Hilt (N. Y.) 531; Welles v. March. 30 N. Y. 344. And surviving partners may. of course, assign for benefit of cred- itors. Emerson v. Senter, 118 U. & 3, 8; Haynes v. Brooks, 42 Hun (N. Y.), 528. 37. After the death of A., B., his surviving copartner, deeds the firm real estate to X. for benefit of creditors. By A.'s will his share of the realty is devised to his son. Could B. give a good legal title? Technically he could not, as the deed, being a sealed instrument, could not be the deed of the deceased partner. But B. did trans- fer a good equitable title, and a court of equity would compel the son to convey the legal title. Shanks v. Klein, 104 U. S. 18; Easton v. Courtwright, 84 Mo. 27, 37. Nor is this doctrine confined to a dissolution of the firm by death. It ie equally true, whatever the cause of the dissolution, e. g.. by ab- sconding. Dupuy v. Leavenworth, 17 Cal. 262. 266 QUESTIONS AND ANSWERS. 38. X. is a creditor of the firm of A. & B. He gives B. a general release. Can he then recover the whole or any portion of the draft from A.? No. The rule that a release to one of several codebtors discharges all is applied to partnership. Elliott v. Holbrook, 33 Ala. 659, 667. Ex parte Slater, 6 Ves. 146. Similarly, a covenant by a creditor not to sue one partner is : bar to an action against his copartner. Kendrick v. O'Neil, 48 Ga. 631, 635. The release of a partner, however, will not bar an action against his copartners, if the instrument as a whole imports an intention to still hold the firm estate and that of the other partners. 39. After the dissolution of a firm, one of the partners makes a part payment of a firm debt already barred by the Statute of Limitations. Is the debt revived as against all of the partners? The States are divided upon the point, but in most jurisdictions it is held that a partner cannot bind the firm, either by a part payment or a new promise. Gates v. Fisk, 45 Mich. 522; Kirk v. Hiatt, 2 Ind. 322; Mix v. Shattuck, 50 Vt. 421. The reason given for such decision is that waiving *the statute is like making a new obligation, and is no necessary part of winding up a firm. But even in jurisdictions which so hold, the firm will- be bound if the creditor to whom the part payment or new promise is made has had no notice of the dissolution. Gates v. Fisk, supra; Tate v. Cle- ments, 16 Fla. 339, 341. In some jurisdictions, however, the waiver of the statute will only bind the partnership, if made before the claim is barred by the ex- piration of the statutory period. McOlurg v. Howard, 45 Mo. 365; Austin v. Bostwick, 9 Conn. 496. But in Rhode Island it is held that a partner can bind the firm by a waiver of the statute after dissolu- tion and after the claim is actually barred. Turner v. Ross, 1 R. I. 88. See Ames, Cas. on Partnership, 618, note 2, cases collected. 40. " Notice to one partner is notice to all." Explain. " When it is said that notice to one partner is notice to all, what is meant is (1), that a firm cannot, in its character as principal, set up the ignorance of some of its members against the knowledge of others, of whose acts it claims the benefit, or by whose acts it is bound; and (?). that where it is necessary to prove that a firm had notice, all that had to be done is to show that notice was given to one of its members as the agent, and on behalf of the firm." 1 Lindley on Partnership (Rapalje Am. ed.), 141, 142. But the nrm should not be affected by the knowledge of a part- ner, if the firm claims, not through his act, but through the act of a copartner. But see contra, Stockdale v. Keyes, 79 Penn. St. 251. PARTNERSHIP. 267 i d. Judicial Proceedings. 41. Can a partner begin an action in the firm name without consulting his copartners? Who would have the power to dis- continue? The common-law rule prevails, that no action can be brought in the firm name, but any partner can bring a firm suit in the name of all the partners without any consultation whatever. After the action has been begun, any partner who objected would have the power to enter a discontinuance, unless he were acting fraudulently. Noonan v. Orton, 31 Wis. 265, 274; Loring v. Brackett, 3 Pick. 403. 42. A. makes a contract ostensibly for his firm. Can he sue on it in his own name? No. Under such circumstances all of the partners must be joined as parties plaintiff, whether they appear by name in the contract or not. Vail v. West. Va. Co., 110 U. S. 215; May v. West. Union Tel. Co., 112 Mass. 90. If a partner is in fact acting for his firm, all of the partners may be properly joined as plaintiffs, though the defendant did not know that the partner was acting in his representative capacity, but the partner may sue alone. Alexander v. Barker, 2 Cronip. & J. 133, 138; Badger v. Daenieke, 56 Wis. 678. If, however, a partner makes a contract actually and ostensibly on his own behalf, he must sue in his own name. Agacio v. Forbes, 14 Moo. P. C. 160. Oorment partners may be joined as plaintiffs, though they need not be. Robson v. Drummond, 2 B. & Ad. 303, 307. See also Wright v. Herrick, 125 Mass. 154. 43. A. brings suit against X. & Co. and serves the papers only upon X. Is the service good? No. Service on one partner at common law is not service upon the firm or other partners. Scott v. Bogart, 14 La. Ann. 261; 1 Lindley on Partnership (Bapalje Am. ed.), 272; Story on Partner- ship (7th ed.), 114; Rice v. Doniphan, 4 B. Mon. (Ky.) 123; Bowin v. Sutherlin, 44 Ala. 278, 281. Service on one of the partners after dissolution is certainly not sufficient. Newton v. Heaton, 42 Iowa, 593, 597; Hall v. Lanning, 91 U. S. 160. But in any jurisdiction wHere by statute you can proceed in the- firm name, service upon any partner is good service upon the firm, and by some statutes service may even be made upon an employee. 268 QUESTIONS AND ANSWERS. 44. A partner confesses judgment against his firm. Against what property can execution issue? Execution could not issue against any firm property. A part- ner has no power to confess judgment against tiie firm. Soper v. Fry, 37 Mich. 236. Execution against linn property will be per- petually enjoined, Christy v. Sherman, 10 Iowa, 535; or set aside,. Morgan v. Eichaxdson, 16 Mo. 409, 411; Ellis v. Ellis, 47 N. J. Law, 69, 71; or cannot be enforced, Shedd v. Bank, etc., 32 Vt. 709, 716. Contra, Ross v. Howell, 84 Penn. St. 129. The partner so confessing would be individually bound by the confession. Stevens v. Bank, etc., 31 Barb. (N. Y.) 290; Ellis v. Ellis, ante. See Story on Partnership (7th ed.), 114; Lindley on Partnership (Rapalje Am. ed.), 272, 45. In a firm of three partners, two object to the signing of a contract, a fact which the other contracting party knows. He, nevertheless, signs a contract with the third partner. Is the contract enforceable? Suppose only one partner objected? The weight of authority is that if one partner objects, (and cer- tainly if the majority does) the firm cannot be charged. Moffitt v. Roche, 92 Ind. 96; Matthews v. Dare, 20 id. 248, 273; Faigley v. Stoneberger, 5 W. & S. 564, 566. The reason given is that the power of one partner to bind the others is not essential to the constitution of a partnership; it is an implied power only, and may, therefore, be controlled by a partner who wishes to protect himself against claims created contrary to his assent and express directions. On principle, the firm should be bound even where the objection is known. If a partner is not observing his duty to his firm, acting negligently or fraudulently, the remedy is a dissolution. The fol- lowing cases hold the firm is bound, despite the objections of the other partners. Wilkius v. Pearce, 5 Den. (N. Y.) 54; Campbell v. Bowen, 4i> Ga. 417. The reason given is: the power of one partner to bind the others is an incident to the copartnership relation, and must exist while the relation endures. A contract made by a majority of the partners will, in the absence of bad faith, bind the miaority, although the objection is known to the other contracting party. Johnston v. Dutton, 27 Ala. 245. 252; Staples v. Sprague, 75 Me. 458. See Fisher v. Murray, 1 E. D. Smith (N. Y.), 341, 344. Any partner, however, may receive payment of a firm debt, and this, although other partners object and the objection is known to the debtor. Steele v. Bank, etc., 60 111. 23. And see also Gillilan v. Ins. Co., 41 N. Y. 376, where payment was made to an insolvent partner after notice to the debtor of such insolvency. PARTNERSHIP. 269 46. Is a firm liable for the torts of the partners? Partners, like individuals, are responsible for the negligence of their servants while engaged in the business incidental to their em- ployment, and if one partner does an act consistent with his rela- tions to the firm, he is considered in its performance as the servant of the firm. Gwynn v. Duffield, 66 Iowa, 708, 712. In other words, if the partner commits a tort while acting in his representa- tive capacity, the firm is liable. The firm was held liable for the torts of a partner in the following cases: Negligence Linton v. Hurley, 14 Gray (Mass.) 191. Conversion: Durant v. Rogers, 87 111. 508. Fraud: Castle v. Bullard, 23 How. (U. S.) 172, 183; Chester v. Dickerson, 54 N. Y. 1, 11; White v. Sawyer, 16 Gray (Mass.), 586. Malicious prosecution: Mcllroy v. Adams, 32 Ark. 315; Eosen- kraus v. Barker, 115 111. 338. Libel: Lothrop v. Adams, 133 Mass. 471; Noodling v. Knicker- bocker, 31 Minn. 268. The sole question is, whether the man was acting as a partner. If not, of course the firm is in no way liable. Eosenkraus v. Barker, 115 111. 331; Gwynn v. Duffield, 66 Iowa, 708; Noodling v. Knick- erbocker, 31 Minn. 268. 47. A partner transfers firm property to his separate cred- itors who know of the fraud. Can the property be recovered by action in trover? On common-law principles it cannot be. The firm cannot sue as such, and when all partners are joined as plaintiffs then the fraudulent partner is barred by his own fraud and so the honest partners are barred also. In England, even a surviving innocent partner is barred. Jones v. "iates, 9 B. & C. 532. There is always relief in equity, however. Mid- land R. R. Co. v. Taylor, 8 H. of L. Cas. 751; 2 Lindley on Partnership right at all to her husband's chattels, but she owned her clothing and ornaments purchased for her use, called parapher- nalia. 2 Bl. Com. 433-436; Schouler on Pers. Prop. 113. The respective rights of husband and wife as the law now stands can only be ascertained after a study of the statutes of the State where the question arises. * Under this head only those topics relating to personal property are treated which are not touched upon in the sections on Torts. Real Property (the latter including various Incidents of chattels real and the subject of Wills and Administration), Sales, etc. 293 294 QUESTIONS AND ANSWERS. ' Title by judicial decree includes several subdivisions; (a) A judgment in trespass or trover against one wrongfully in possession of a chattel, while it vests a right to damages in the plaintiff, also vests a title to the thing itself in the defendant, because no second action can be brought. 2 Bl. Com. 436, and note (Shars- wood); Smith v. Smith, 51 N. H. 571. (b) The title gained by a purchaser at a sheriff's sale on execution conies under this head. The purchaser gets only whatever title the judgment debtor had. Griffith v. Fowler, 18 Yt. 390. (c) Title of an assignee in an invol- untary bankruptcy obviously belongs in the same category. Title by adverse holding for a period of time, the length of which is regulated by statute in each State, is similar to title gained in the same way to real estate. See Real Property, Ques. 14 and 15. The title once gained is perfect and good against all the world, and this applies both to the chattel and its increase produced during the adverse possession. Bryan v. AVeems, 29 Ala. 423 (slaves); Chapin v. Freeland, 142 Mass. 383. Title by occupancy is the title by which one owns that which, at the time it was acquired, was owned by no one. Animals ferae naturae are held by this title. Property in them lasts only while they are within the power or control of the party taking them. Young v. Hichens, 6 Q. B. 606; Buster v. Newkirk,"20 Johns. 75. b. By Act of the Parties. 3. What are the principal titles of this general description? Title by sale, by gift, by accession or confusion, and by bequest. Sale is considered under other heads, and title by bequest or intestacy under Wills. See Questions on Real Property, Xos. 4), ff. To make a gift complete, it must be by deed, or there must be a deliver}", actual or symbolical. Cochrane v. Moore, 25 Q, B. Div. 57; Noble v. Smith, 2 Johns. 52 (leading American case). A donatio causa mortis is a gift made by a donor in expectation of death, to hold good if he dies of that illness, and to be void if he recovers. Delivery has always been essential to this. Ward v. Turner, 2 Yes. Sr. 431; Noble v. Smith, supra. 4. Accession. A. cut saplings on B.'s land, without knowing he was over the boundary between his land and B.'s, and by his labor turned them into barrel hoops. While standing, the wood was worth $25, as barrel hoops, $800. B. brought replevin. What is the proper decision ? B. cannot retake them. For although, as a rule, one who takes another's goods has no right to hold them and cannot pass any title to a third person, in this case the property cannot be reclaimed by the original owner, because the taker has immenselv increased its value by expending his labor and skill upon it. The measure of PROPERTY; PERSONAL. 295 damages is that of compensation for the wood as it was when taken. Wetherbee v. Green, 22 Mich. 311; s. c., 7 Am. Rep. 653; Herdic v. Green, 55 Penn. St. 176; s. c., 93 Am. Dec. 739. In the case supposed, the taking was innocent. The rule, when the trespass was wilful, probably is that no amount of labor by the wrongdoer will prevent the original owner from reclaiming the goods or their value as thus enhanced. Silsbury v. McCoon, 3 Comst. 379, overruling 4 Denio, 425. By this rule, the principle which in civil suits gives compensation only, is disre- garded for the sake of punishing the offender, but it is apparently well settled. Livingstone v. Rawyards Coal Co., 5 App. Cas. 25, 39; Wooden Ware Co. v. United States, 106 U. S. 432; Ry. Co. v. Hutchins, 32 Ohio St. 571. 5. Confusion. A. and B. owned a cargo of cotton. The ves- sel was wrecked, and on the bales which were saved the distin- guishing marks of ownership were obliterated. To whom would they belong? They would be divided between A. and B. in the proportion in which they contributed to the original cargo, because the mingling was accidental. Spence v. Ins. Co., L. R. 3 C. P. 427. The title to goods intermingled so that those belonging to dif- ferent persons cannot be distinguished depends upon how they came to be mixed. If the mixing was lawful or accidental each takes in proportion to his contribution; and even if tortious, the rule is the same, if the goods are of uniform quality. Hesseltine v. Stockwell, 30 Me. 237; Ryder v. Hathaway, 21 Pick. 298. If the mixing is tortious and the goods of unequal value, the injured party can take with a free hand; Fuller v. Paige, 26 111. 358; Smith v. Morrill, 56 Me. 566; and, perhaps, hold all. See Ryder v. Hathaway, supra. III. POSSESSION. a. Judicial Process. 6. A. and B. owned, in common, a chattel, which was seized by a sheriff on execution against A. and sold entire, the purchase money being handed to the judgment creditor. For ivhat is the sheriff liable to B. ? He is liable to him in either trespass or trover, for, although he was justified in taking possession in the beginning, he only had a right to dispose of A.'s interest. By his abuse of this right he became a trespasser ab initio. Melville v. Brown, 15 Mass. 82. The trespass takes effect from the beginning, because he acted by authority of the law, which B. could not resist, and which must, therefore, be strictly pursued. The Six Carpenters Case, 8 Co. 290; s. c., 1 Smith's L. C. 216. 296 QUESTIONS AND ANSWERS. A sheriff, however, so long as he keeps within the bounds of his authority, can hold possession, and enforce his right by the possess- ory actions against anyone interfering with it. Casher v. Peterson,. 4 N. J. 317; Whitney v. Ladd, 10 Vt. 165 (where property held jointly and attached on a claim against one co-owner was protected from seizure by the other). b. Bailment. 7. When does a bailee have a right to retain goods to enforce payment for his services? A bailee has a lien (1) when by law he is compelled to take the goods, e. g., a common carrier; Skinner v. Upshaw, 2 Ld. Raym. 752; (2) by mercantile custom; Vail v. Durant, 7 Allen, 408; s. c., 83 Am. Dec. 695 (factor); (3) by labor done, enhancing the value of the article; Morgan v. Congdon, 4 N". Y. 552; and (4) by statutes which have generally given a lien for such services as those of a livervman or an agistor. See note, 13 Am. & Eng. Ency. of Law (1st ed.), 945. If a future time for payment is fixed no lien can attach, for such an understanding is inconsistent with a lien and destroys it. Chase v. Westmore, 5 M. & S. 180; Wiles, etc.,. Co. v. Hahlo, 105 N. Y. 234; s. c., 59 Am. Rep. 496. 8. What are the advantages and disadvantages incident to holding by a lien? The advantage is that the owner will probably be induced to- pay what is due for the sake of getting his goods. The cLief disadvantage arises from the fact that a (specific) lien is divested if possession is given up; Mulliner v Florence, 3 Q. B. Div. 484; 1 Jones on Liens, 20; and is this: that any expense in- curred in keeping the property must be borne by the bailee. Brit- ish, etc., Co. v. Somes, E. B. & E. 353; aff'd, 8 H., L. Gas. 338; 1 Jones on Liens, 972. Moreover, at common law the property could not be sold to pay the charges. 1 Jones on Liens, 335; Briggs v. R. R. Co., 6 Allen, 246. But statutes have been adopted almost universally, providing for a sale after a certain length of time and after notice. 9. X. steals Y.'s horse, rides him to an inn, runs up a nnd leaves without paying it. Can the innkeeper hold the horse against Y. for this indebtedness? It depends on whether the landlord received the horse as the property of X. He is compelled to receive the goods of any trav- eler and to become liable for them, and the protection of the lien, even against the true owner, has been accorded to him since very early times. Robinson v. Walter, 3 Bulst. 269 (1616); Thre- falf v. Berwick, L. R. 7 Q. B. 711; 1 Jones on Liens, 499. PROPERTY; PERSONAL. 297 The same privilege is not accorded to a carrier, in this country at least. It is said that he can tell in advance the amount of his charge and should insist upon his right to prepayment: that it is for the benefit of an owner that his horse should be fed, but very likely none at all that his goods should be transported; and that there is no obligation on the carrier to take goods for anyone but the owner. Fitch v. New- berry, 1 Doug. (Mich.) 1; Robinson v. Baker, 5 Gush. 137. 10. What is the difference between a specific and a general lien? A particular or specific lien is one which " attaches to specific property, as security for some demand which the creditor has in respect to that property." 1 Jones on Liens, 14. This is the common kind and is favored by the courts. A general lien is less frequently allowed and is not favored. It holds property as security for obligations from the owner which do not necessarily arise from any demand the creditor may have in respect to that property; " it is for a general balance of accounts." The most conspicuous example of such a lien is that of a factor. See 1 Jones on Liens, 17. 11. Define a pledge. A pledge of property holds a position between a lien and a chat- tel mortgage. The title does not pass to the pledgee as it does to a mortgagee; but, on the other hand, the pledgee has more ex- tensive rights and a more advantageous position than one holding by a lien. "A deposit of goods is made a security for a debt, and the right to the property vests in the pledgee so far as is necessary to secure the debt." Halliday v. Holgate, L. E. 3 Ex. 299; Wood v. Dudley, 8 Vt. 430. On default of payment of the debt, it is well settled that the pledgee may sell the property " without a, judicial process and de- cree of foreclosure, upon giving the debtor reasonable notice to redeem," and may thereby pass a good title. Parker v. Brancher, 22 Pick. 40, 46; Stearns v. Marsh, 4 Denio, 227. PROPERTY; REAL. I. TENURE AND ESTATES. 1. What was the feudal system? It was the system of holding land prevailing in England from the Norman Conquest (1066) until the Bestoration (1660). By it, the king owned all the land. He granted the use (called a feud or fee) of portions of the land to various subjects, who held at first at will, later for life, and finally by an estate of inheritance, and who paid to the Crown services, military at first, but made pe- cuniary later. These men parceled out what they had to others, who in turn owed services to them; and, as the estate became hereditary, other burdens, such as payments by the tenant on com- ing into his inheritance, or on carriage of his daughter, were added. This granting out of the lands to subordinate holders (known as subinfeudation) went so far that the lords found great difficulty in enforcing the feudal duties owed them. To correct the evil, the Statute of Quid Emptores (1290) was passed, providing that when land was granted away by a tenant, the one receiving it should owe his duties to the lord of the tenant and not to the grantor himself. At the Restoration, Charles II was forced to give the final blow to the burdensome system. Almost all tenures were reduced to free and common socage, i. e., a tenure for a fixed, money payment, in stead of an uncertain amount of services or work. See Tiedeman on Eeal Property, 20; 1 Wash-burn on Heal Property, bk. 1, chap. 2. 2. By what tenure is land held in the United States? Practically all the land is owned allodially, i. e., absolutely. But there still remains the right of escheat to the State when a man dies without heirs; and, of course, the State has the right to take by eminent domain lands needed for public uses. Tiedeman on Real Property, 25. And see 1 Weshburn on Real Property, pp. 63-67. 3. Define " freehold," and draw up a table of estates, based on the quantity of interest. "A freehold is an estate which is to endure for an uncertain period, and which must, or at least may, last through the lifetime * References to Tiedeman on Real Property are to the first edition, and to Washbunx on Real Property to the fourth edition. 298 PROPERTY; REAL. 299 of some person." Tiedeman. 26. It is a life estate or any greater one. ( 1 . Freeholds of inheritance Estates of freehold. I Fee-simple. ( Fee-tail. fBy operation of law 8. Freeholds not of Inheritance i. e., for life Estates lesa than freehold. (a. Dower. 1 6. Curtesy. c. Fee tail after possibility of issue extinct. d . Estate for an uncert ain period which may last for a life. fa. Life of per- | son himself. By act of the parties { 6. Life of an- other, (per I, outre vie). II. Lease for years. K. Lease at will. 3. Estate by sufferance. 4. Define the freeholds of inheritance. " Tenant in fee-simple is he which hath lands or tenements to hold to him and his heirs forever." Lit., 1. " Tenancy in fee- simple is the highest estate known to the law and is absolute." Tiedeman on Real Property, 36. An estate-tail is to a man and some class of his heirs, such as his heirs male of his body, or his heirs by a certain wife. Tiedeman, 43. For estates tail in United States, see Tiedeman, 52. 5. Define the freeholds not of inheritance. Dower is the right of a wife to the life enjoyment, after the husband's decease, of one-third of any estate of inheritance, of which the husband was seized at any time during the coverture, provided it was such an estate that her issue, had she had any, could have inherited it. Williams on Real Property (13th ed.), 235; Tiedeman on Real Property, 115. Curtesy is the corresponding right of a husband in all the estates of inheritance of his wife, with the added requirement that issue capable of inheriting the property must have been born alive. Tiedeman, 101; 1 Bouvier's Law Diet., p. 416. Fee-tail after possibility of issue extinct is illustrated by this case: Estate to A. and his heirs had by wife B. B. dies without issue had; A. has the estate in question. 390 QUESTIONS AND ANSWERS. An example of an estate, which is a life estate because it may last for a lifetime, is one to A., so long as X. remains unmarried. See Tiedeman on Real Property, 60 6. Define the estates less than freehold. An estate for years is one for any definite period of time. It* duration is ascertainable. 1 Wash-burn on lleal Property, p. 436 (4th ed.). After a contract for a lease, but before entry by the lessee, he has- no estate in the land; what ha has is a right of entry (which is as- signable), called an interesse termini. Tiedeman on Real Property, 1^4. Estates at will are, as their name implies, leases by one to another, determinable at any time, by either party. The lessee has no in- terest which can be assigned. Lit., 68; Tiedeman on Eeal Prop- erty, 212. A tenant at sufferance is one who comes in rightfully, but holds- over without right, such as tenant per autre vie, holding after the end of the life on which his estate depended. Co. Lit. 57, b; Tiedeman on Real Property, 225, 226. 7. State the difference between a reversion and a remainder; and between a vested and a contingent remainder. A reversion is that remnant of an estate which remains in a person after he has transferred to another some lesser estate, such as an estate for years out of a life estate, or a life estate out of a fee. Co. Lit. 22, b; Tiedeman on Real Property, 385. A remainder is a future estate, created at the same time "as. another and precedent estate (known as the particular estate), and to be enjoyed on the termination of the latter. Co. Lit. 143, a; Tiedeman on Real Property, 396. As to the difference between a vested and a contingent remainder, the statement by Leake, Digest Land Law, 48, is very clear. " A re- mainder limited to an uncertain person or upon an uncertain condi- tion and so long as the uncertainty lasted, became known as a con- tingent remainder. A remainder limited absolutely and to a deter- minate person, or which had become absolute and certain in owner- ship by subsequent events, was a vested remainder." Thus, an es- tate to A. for life, remainder to B. in fee, B. being alive, creates a vested remainder in B. An estate to A. for life, remainder to B.'s- eldest son, B. then having no son, creates a contingent remainder. See 2 Washburn on Real Property, pp. 539-542 (4th ed.); 4 Kent,. Com. *pp. 202-206; 2 Bl. Com., chap. 11, pp. 163-171. A contingent remainder, if it ever becomes a vested one, must obviously become so during the continuance of the particular estate, since it is limited to take effect immediately on the ending of that estate. It becomes vested by the remainderman's coming into PROPERTY; REAL. 301 being, or by the happening of the event on which his right depends. In creating a contingent remainder, the supporting or particular estate must be a freehold, because otherwise the seisin would be in abeyance. 8. How are estates classified according to the number of cwners ? Estates held in severalty (i. e., by one person), in coparcenary (a peculiar estate no longer of importance), in joint-tenancy, and in common. In joint tenancy, the owners " have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same possession." Its distinguishing characteristic is the right of survivorship. By this, on the death of one joint tenant, his interest passes to the remain- ing ones, regardless of his heirs or devisees, or of claims to dower or curtesy. The estate has, as a consequence, been done away in most States, except for trustees. Tiedeman on Real Property, 236-238; 2 Bl. Com. 180-182. Tenants in common hold by distinct titles, and each has simply an undivided share. There is, therefore, no survivorship; each share descends to heirs like an estate in severalty, and is freely devisable. Tiedeman on Real Property, 329; 1 Washburn on Real Property, bk. 1, chap. 13, 3. 9. Define seisin and livery of seisin. Seisin signifies simply possession, under a title, or at least a claim, of freehold; one is never " seized " of a term for years. Seisin is a question of fact. When no one is in possession of the land, the seisin is in the person having the right of property, and is then seisin in law, but this disappears as soon as an actual pos- session begins, by one claiming a freehold. The seisin, therefore, can never be in abeyance. See Tiedeman on Real Property, 24, 396; 1 Washburn on Real Property, p. 58. Livery of seisin was the term used to describe the ceremony of handing over the seisin from one to another. The two went on the land with witnesses, and a twig or piece of turf, sometimes a ring, was handed over as a delivery of the possession. The transfer took effect immediately, and this furnished one reason why a free- hold could not at common law be created to begin in futnro. Tiedeman on Real Property, 770; 2 Bl. Com. 314-316. Whether the transferor had a right to pass the seisin or not, the transferee took it. If someone else had a superior right, he was by that act disseised. A disseisin is, in general, effected by any open entry and occupation, under a claim of a freehold right, with the intention to shut out the true owner, and his actual ex- clusion. In technical language, the possession gained must be 302 QUESTIONS AND ANSWEES. notorious, exclusive and adverse. The disseisor acquires a perfect title immediately against all but the true owner, and against him also after the running of the Statute of Limitations. Tiedeman on Eeal Property, 693-700; 3 Washburn on Real Property, pp. 125-129. II. ACQUISITION OF TITLE WITHOUT A CONVEYANCE. a. Operation of Law. 10. Enumerate and define the principal estates which are ac- quired by the operation of law purely. The principal titles so acquired are those of dower, curtesy, escheat and accretion. Dower and curtesy have already been denned (Ques. 5, supra). Escheat is the title by which the State takes the real estate of one dying intestate, and without heirs. It is feudal in origin, and re- versionary in character. 3 Washburn on Real Property, pp. 46, 49. Title by accretion is the title which the owner of land gains to other land, gradually added thereto by the operation of natural causes, such is the ordinary flow of a river. Tiedeman on Real Property, 685, 686; Deerfield v. Arms, 17 Pick. 41; Cook v. McClure, 58 N. Y. 437. The time-honored division of titles into title by descent and title by purchase may here be noticed. Title by descent is that by which an heir-at-law holds the realty of his deceased (intestate) relative; title by purchase, includes practically all other titles, comprising even a title acquired by gift. Opinions differ as to the class to which dower and curtesy belong, y Washburn on Real Property, 4, 5. The question sometimes arises, whether an heir to whom land is de- riscd takes it by descent or purchase. The test is found in Clerk v. Smith, 1 Salk. 241, and is this: Does he take the same estate that the law would have given him, if the ancestor had died intestate? If so, he is in by descent. 11. What are the English canons of descent., and how far are they of force in the United States? They are the rules by which the heirs were ascertained and the descent of real estate governed, at common law. 1. Inheritances shall lineally descend to the issue of the person who last died actually seised, in innnitnm, but shall never lineally ascend. 2. The male issue shall be admitted before the female. 3. Where there are two or more males in equal degree, the oldest only shall inherit, but the females of equal degree all together. 4. The lineal descendants, in infinitmn, of any person deceased shall represent their ancestor: that is, shall stand in the same place as the person himself would have done, had he been living. PROPERTY; REAL. 303 5. On failure of lineal descendants, or issue, of the person last seised, the inheritance shall descend to his collateral relations, being of the blood of the first purchaser; subject to the three preceding rules. 6. The collateral heir of the person last seised must be the next collateral kinsman of the whole blood. 7. In collateral inheritances, the male stocks shall be preferred to the female, unless the lands have in fact descended from a fe- male. See 3 Washburn on Real Property, pp. 10-12, for explana- tion in detail of these canons. In the United States, though the canons are applied, unless changed by the Legislature, there are statutory provisions every- where, which have no uniformity and are constantly altered. In general, it may be said, that the first, second, third and seventh canons are done away. The fourth is also done away, in cases where all the heirs are of equal degree. When they are of unequal degree, the common-law rule is applied. For example, A. has children B. and C., of whom B. has two children, and C. three. B. dies. Then A. dies intestate. His heirs are B.'s children, and C., and as they are of unequal de- gree, the property goes per stirpes, i. e., half to C. and half to the children of B. If B. and C. had both been dead at A.'s death, the five children would have each taken one-fifth, the division being per capita. Canon number 5 is modified by a preference to lineal ances- cestors, if living, over collateral branches; number 6 is not in force, but the changes in it have not been so sweeping as in the others. See 3 Washburn on Real Property, pp. 12-16, and his summary of the. statutes in the various States, p. 21. 12. What was the common-law method used in computing the degree of relationship between two persons, for determining the descent of real estate? Is it in force? The degree was obtained at common law by counting the genera- tions from the common ancestor to that one of the persons in ques- tion who was farthest from him. Thus an uncle and nephew were related in the second degree, the common ancestor being the grand- father of the nephew. At present, in this country, the civil-law rule, which has always been followed for finding the " next of kin," i. e., the distributees of the personalty of an intestate, prevails. This consists in adding together the number of degrees between each of the two persons and the common ancestor. An uncle and nephew under this cal- culation are related in the third degree. 3 Washburn on Real Prop- erty, p. 10. 13. How may a right of dower be lost or barred? The statutes of the respecti.ve States must be examined for de- tails, but the following are the leading ways in which a dower right 304 QUESTIONS AXD ANSWERS. disappears: (1) by elopement, unless condoned by the husband; (2) by the wife's joining the husband in his transfers of land; (3) by a provision in lieu of dower, either by jointure in the husband's life- time, or by the husband's will. In the last case, the widow has an election between the provision by will and her ordinary dower rights. Tiedeman on Keal Property, 127, 128, 147, 148. b. By Operation of Law, Against the Will of the Former Owner. 14. Name and define briefly the titles so gained against the will of the previous owner. The principal titles so acquired are those by eminent domain, taxation, execution, bankruptcy, liens, and lapse of time. Eminent domain and taxation are sufficiently treated under another head (Constitutional Law); execution and bankruptcy explain them- selves; a lien upon land " does not imply an estate in it, but a mere right to have it, in some form, applied towards satisfying a claim upon it." 2 Washburn on Real Property, p. 34. A lien is, there- fore, not strictly a source of title. Titles by lapse of time are two: (1) Title to corporeal real es- tate, gained by a holding adverse to the real owner for a pre- scribed number of years, the essentials of which have already been noted (under disseisin, Ques. 9, supra). 3 Washburn on Real Prop- erty, pp. 125-129, 134-138, 141. (The Statutes of Limitation vary widely in the different States, the time required ranging from five to twenty-one 3 r ears; 3 Washburn on Real Property, 166, note); (2) Title by prescription, which corresponds to that by the Statute of Limitations, but arises from the user, for a stated time, of an incorporeal hereditament. Originally, it was necessary in order to gain a title by prescription to prove that the right had been enjoyed from the time of legal memory (i. e. Richard 1), but the impossibility of .such proof sioon compelled a change. The courts adopted the doctrine that a lost grant would be presumed from an exercise of the right after a period of years. At present, the rule is that this presumption becomes conclusive after the lapse of the same number of years which bars an action to re- cover corporeal real property; thus achieving the desirable result of uniformity in the acquisition of all titles by lapse of time. Tiedeman on Real Property, 599, note; Tracy v. Atherton, 36 Vt. 503; Wallace v. Fletcher, 30 N. H. 434. Traces of the old theory of the lost grant still appear in some States. Lamb v. Crosland, 4 Rich. (S. Car.) 536; Parker v. Foote, 10 Wend. 309, (dictum). 15. It has been sometimes urged that the operation of the Statute of Limitations was simply to bar the remedy of the person shut out of his land, and that, consequently, even after PROPERTY; REAL. 305 the statutory period had elapsed, a relinquishment or abandon- ment by the wrongdoer would restore the former rights of the previous owner. Is this position tenable? No. The title is as completely gone as if there had been an express deed to the adverse holder. The great object of the statute was to put a stop to litigation based on rights arising far in the past, and the construction claimed would go to frustrate that purpose. The former owner is a " stranger," after the statute has run. School District v. Benson, 31 Me. 381; Hughes v. Graves, 39 Vt. 359. 16. Would the statute begin to run in either of the following cases: (1) A lessee for years determines to hold adversely to his lessor, and does various acts indicating this intention; (2) A. puts up a fence on what he honestly thinks is the line between his land and that of B., and treats the land so inclosed as his own; in fact, he has included some land belonging to B. f In (1), the answer depends on whether the acts in disafnrmance of the lessor's title are brought clearly to his knowledge. If they are positive acts, like a refusal to pay rent, and are clearly brought home to the lessor, the statute, by the great weight of authority, will begin to run in favor of the lessee. Willison v. Watkins, 9 Pet. 48; Sherman v. Trans. Co., 31 Vt. 162, 177. Contra, De !Uncey v. Ga Xun, 9 N. Y. 9. As to (2), there is the same weight of authority that A. will have the benefit of the statute. In a leading case it is admitted that the intention of the possessor to enter and claim adversely is neces- sary, but it is held that " the person who enters on land, believing and 'claiming it to be his own, docs thus enter and possess." The fact that he is not morally in the wrong should not put him in a worse position than an intentional wrongdoer. Indeed, the motive is immaterial. French v. Pearce, 8 Conn. 439; Yetzger v. Thomas, 17 Ohio St. 130. Contra, Grube v. Wells, 34 Iowa, 148. 17. A. took possession of part of a tract of land, having a paper title to the whole tract. His deed was not good, but he held the part he first occupied for the full statutory period, with a claim of right to the whole. To how much did he gain title by adverse possession ? To the whole tract, under the doctrine, of constructive possession. The doctrine, though well settled, is peculiar to this country, and perhaps arose from the existence of woodland, connected with farms, but seldom used. There must be a deed accurately describing the whole of the premises, and the tract must be of moderate extent; that is, the origin of the rule requires its application to be made with reasonable limitations. Jackson v. Woodruff, 1 Cow. 276; Bailey v. Carleton, 12 N. H. 9. 20 306 QUESTIONS AND ANSWERS. 18. Disabilities. A. is a woman who is disseised at six years of age, married at eighteen, becomes a widow at forty. A statute gives a disseisee fifteen years to assert his right, and if he is under a disability, such as infancy or coverture, at the time the right of entry first accrued, gives five years in addition after the removal of such disability. Can A., when discovert, bring suit to eject the disseisor? No. The only disability of which she could take advantage was the one arising from her infancy. This is because that was the only one existing at the time the disseisin occurred, ^o disability arising after that time can affect the case. Bunce v. AVolcott, 2 Conn. 27; Eager v. Commonwealth, 4 Mass. 182. 19. A statute provides that adverse possession, to gain title, must continue fifteen years. A., the owner of land, is disseised by B., who holds for ten years, when he is, in turn, thrust out by C., who holds five years. Does C. gain a good title as aaainst A. ? In other words, can successive disseisors tack their holdings to- gether to make up the requisite time? The cases are in conflict. It is on all hands admitted that any " privity of estate," between the successive holders, i. e., any transfer from the prior wrongdoer to his successor by descent, de- vise or grant, will suffice to give the successor the advantage of the time during which his predecessor held adversely. Sawyer v. Ken- dal, 10 Cush. 241; Overfield v. Christie, 7 S. & R. 173. AVhen, however, the case suggested in the question has come up, the decisions have been diverse. In Massachusetts, separate successive disseisins are not allowed to be tacked. Sawyer v. Ken- dal, supra. But in other States, following the spirit of the statute, which was to quiet titles and cut off the rights of persons dilatory in enforcing them, the opposite conclusion has been reached, a necessary qualification being added, that there must be no interval between the holdings of the two wrongdoers. Fanning v. Wilcox, 3 Day (Conn.), 258; Shannon v. Kinny, 1 A. K. Marsh, 3. III. TITLE BY VOLUNTABY CONVEYANCE, INTER Vivos. a. Form of Conveyance. 20. What were the conveyances known to the common law? To follow Blackstone's well-known summary, dividing them into primary conveyances, or those transferring some estate to one hav- ing no other interest in the property, and secondary, in which an estate previously created is modified or extinguished, they are these: Primary, (1) feoffment; (2) gift; (3) grant; (4) lease; (:>) exchange; (6) partition. Secondary, (1) release: (2) confirmation: (3) sur- render; (4) assignment; (5) defeasance. 2 Bl. Com. 309, 310. PROPERTY; REAI* In all transfers of a freehold estate (in possession) in. corporeal real property, the ceremony of livery of seisi,n (Ques 9, supra), was an essential part; the transfer was either a feoffment, creating a fee; a gift, creating a fee tail; or a lease for life; according to the words used at the ceremony. Tiedeman on Eeal Property, 769, 770. This transfer by livery of seisin is the only method of primary common-law conveyance capable of creating a freehold or of trans- ferring a freehold in possession, and in this lies the reason that freeholds could not be made to commence in futuro at common law. Tiedeman, supra. Grant was a transfer by deed, and was used to convey corporeal freehold interests when livery of seisin was impossible from lack of possession (e. g., in conveying a remainder), and to convey any interest in incorporeal hereditaments. The rule was that what- ever could be conveyed by livery, must be; and all realty which was transferable in that way was said to lie in livery; all other hereditaments lay in grant. Tiedeman, supra, 771; 3 Washburn on Eeal Property, 352. The term lease was applied to estates for life as well as for a fixed period of years. A term for years was transferred by a parol agreement, and entry. Before entry the lessee had only an intcrcsse termini. Tiedeman on Keal Property, 772 (Ques. 6, supra). A release is a conveyance of one's estate in lands to another who holds already some estate in possession, as by a reversioner to a life tenant where there is no outstanding intermediate estate, or by one joint tenant to another. Except between two tenants in common the transfer is by deed, livery of seisin not being used because the grantee's actual possession, even that of a tenant for years, was considered to render that ceremony unnecessary. Tiedeman on Eeal Property, 773: 2 Bl. Com. 324, 325.* Surrender is the converse of release, namely, a transfer by one in possession of a particular estate to one holding an immediate re- version or remainder, e. g., when there is an estate to A. for life, remainder to B. for life, remainder to C. in fee, A. can surrender to B., because B.'s remainder is immediate to A.'s estate. A., however, bv the operation of these rules, cannot make a surrender to C., but would convey to him by livery. Tiedeman on Eeal Property, 773. The other forms of transfer named above need not be considered here in detail. 21. What is a surrender ly operation of law? When a lessor and lessee perform acts which indicate an intention to abandon the lease, a surrender by operation of law takes place, and the lease is terminated. The most common ways in which such * The chief importance of release in this country is in its descendant, the familiar quit- claim deed, the status of which is set for^h in Tiedeman. 781. and 3 Washburn on Real Property, p. 359. In general, it may Vie said that the quitclaim is recognized as a primary conveyance, and will pass the whole interest which the grantor was at the time capable of transferring. 308 QUESTIONS AND ANSWERS. a surrender takes place are (1) a new lease between the parties, the enjoyment of which is incompatible with the continuance of the old lease; Tiedeman on Real Property, 198, and cases; (2) the delivery and acceptance of possession of the premises (e. g., by handing over the key) to the lessor; Dodd v. Acklom, (> Man. & G. 673; (3) a lease to a third party to whom the lessee hands over possession. ?uckells v. Atherstane, 10 Q. B. 944. See Auer v. Penn, 99 Penn. St. 370, for a discussion of what is sufficient ac- ceptance by a landlord to effect such a surrender. 22. What forms of conveyance arose under the Statute of Uses (1.536)? and what was the general scope and purpose of that Act? Under the Statutes of Mortmain persons were forbidden to trans- fer their estates to religious orders, and the latter, to avoid this prohibition, resorted to a device by which an ordinary common-law transfer was made to one person (called feoffee to uses) to hold to the use or benefit of another (called the cestui qne use). The legal title, with all rights and responsibilities, was held by the former, and the equitable interest, which meant the right to enjoy all the benefits of the estate, by the latter. Courts of law declined to re- oognize the rights of the cestui qitc use, but these were protected by courts of equity, which compelled the feoffee to uses to hold for the benefit of the cestui. Tiedeman on Real Property, 438-440. The Statute of Uses was passed to prevent the great number of frauds and evasions of various feudal duties perpetrated under the system of uses as it then prevailed. It provided that wherever any person stood seized or possessed of any estate to the use of any other person, such other person should from thenceforth be seized or possessed, (as the case happened to be), of such lands or heredi- taments in a like estate as he had had the use in the same. Tiede- man on Real Property, 459, note. For a time, therefore, all such equitable interests in land in the country were abolished, but by a narrow construction of the statute it was held that after a transfer to A. to the use of B. to the use of C., the statute would operate only to move the legal estate from A. to B., leaving it in B.'s hands subject to a trust for C. Tiede- man, supra, 459. ^ Under the statute three new forms of conveyance arose; bargain and sale, covenant to stand seized, and lease and release. A bargain and sale was as follows: A., the owner of land, agreed with a purchaser to sell him the land for money paid, or its equiva- lent. By this agreement, A. held the legal title subject to the use of B., and the Statute of Uses, without any livery of seisin, or any transmutation of possession, passed it from A. to B. Tiede- man, supra, 776. A covenant to stand seized was the same, except in the nature of the consideration. The covenantee must be a near relative or PROPERTY; EEAL. 309 the wife of the covenantor, the transfer taking effect through this good consideration of blood or marriage. Tiedeman, 775. A conveyance by lease and release was devised to evade the Statute of Enrollments (1536), which provided that all transfers of a freehold hy bargain and sale should be in writing and enrolled in one of the King's courts. The process of lease and release was as follows: a bargain and sale was made for one year, which created a legal estate for Fhat time in the bargainee with a reversion in the bargainer, but which required no enrollment because it was not a freehold; the reversioner promptly gave a common-law release to the tenant for years, and thus the publicity of an -enrollment was avoided. Tiedeman, 778. 23. What forfns of conveyance prevail in the United States? It would be impossible to even outline the rules of conveyancing which are in force, but the legal title to land can be passed by any of the methods mentioned above, unless a statute prohibits its use. The general tendency is toward simplicity, and the ancient and salutary doctrine is everywhere recognized that when parties actu- ally go through a certain form, though they think they are going through another, a construction will be made to carry out their in- tention so far as possible. See Tiedeman on Real Property, 779- 781; 2 Wa^hburn on Real Property, pp. 438-454; Roe v. Tran- mer, 2 Wils. 75. b. Description of Property Conveyed. 24. A. conveys to B., by a deed in which the land is described ly fixed and well-known monuments, and also by courses and distances, but the descriptions do not agree. Which prevails? The description by monuments. Measurements and computa- tions are often inaccurate, but fixed monuments remain. Pcrr.am v. Wead, 6 Mass. 131; Preston v. Bowmar, 6 Wheat. 580. And the rule holds though the monuments are set up by the parties after the deed is drawn. Lerned v. Morrill, 2 X. H. 197'. When courses and distances conflict, the one which is more precise prevails. Preston v. Bowmar, supra. 25. What is the rule of construction when land is granted bounded "on" a highway or a nonnavigable stream? It is universally agreed that by such a description the title to the center of the way or stream is cpnveyed. It is an arbitrary ruling as to intention, but is adopted from public policy, to pre- vent a mass of almost useless litigation at some future time when the street might be abandoned, and the remote heirs of the first grantors might assert their title to the small strips and gores of land which would result from a contrary interpretation. Sleeper v. Laconia, 60 K H. 201; Champlin v. Pendleton, 13 Conn. 23 310 QUESTIONS AND ANSWERS. ^ The rule applies also to private ways; Fisher v. Snith, 9 Gray, 441; artificial streams; Warren v. Southworth, 6 Conn. 471; and to streets not yet laid out, but indicated on a map from which lots are sold. Gould v. Eastern Ey. Co., 142 Mass. 85. But see Ban- gor, etc. v. Brown, 33 Me. 339. To prevent the application of the rule in question, probably nothing short of a direct statement in the deed to that effect would be sufficient. Champlin v. Pendleton, supra; Cox v. Freedley, 33 Penn. St. 124. c. Incidents of Leasehold Interests.* 26. By the statute of a State all leases for a time longer than three years were to be in writing. A. made a parol lease to B. for seven years, B. to enter March 1, 1870, and quit February 15, 1877. B. entered and paid rent. On September 1, 1872, A. gave B. notice to quit on March 1, 1873, cient number of witnesses without the subscriber in question. But now, by statute in England and most of the States, such n. result is avoided by a provision that the gift to such witness shall be void, but the rest of the will shall stand. Schouler on Wills, 357; 1 Jarman on Wills, 71-73, Bigelow's note. Whether a gift by the will to the husband or wife of an attest- ing witness is void, under those statutes, is not settled. That it is void, see Winslow v. Kimball, 25 Me. 493. That the witness is disqualified by interest, and the whole void, see Sullivan v. Sullivan, 106 Mass. 474. 324 QUESTIONS AND ANSWERS. e. Attestation. * 59. What is meant by signing " in the presence " of the testator? The rule is, that signing in the room where the testator is is prima facie good, as a signing in his presence, and signing in an- other room is prinia facie bad. Schouler on Wills, 342 ; 1 Jarman on Wills (5th Am. ed.), p. 224, note. The testator need not actu- ally see the signing by the witnesses. It is sufficient if it takes place where he can take cognizance by his senses (sight or hearing) of what is being done, if he will. Newton v. Clarke, 2 Curt. 320; Riggs v. Riggs^ 135 Mass. 238; Reynolds v. Reynolds, 1 Spears (S. C.), 253; s. c., 40 Am. Dec. 599. 60. What is a sufficient signing 1 ? Any mark made with the intention that it shall be the signature of the person, e. g., initials, is a signing. Thus, if a witness writes part of his name, leaving it incomplete intentionally, and later writes the remaining part, the completion is a good signing. Hindmarsh v. Charlton, 8 H. L. Cases, 160; Chase v. Kittredge, 11 Alien, 49, 59. An acknowledgment to the witnesses by a testator, of his signature previously made, is as good as a signing in their presence; Baskin v. Baskin, 36 N". Y. 416; but not so with a witness, for his signature is to attest the execution of the will. Hindmarsh v. Charlton, supra; Chase v. Kittredge, supra. f. Revocation. 61. How may a will be revoked? Here again the statutes must be carefully examined. Under the provisions of the Statute of Frauds (chap. 3, VI) as to the revoca- tion of wills of realty, to which the statutes of the majority of the States conform without distinction between realty and per- sonalty, the following methods are good: (1) By some other will or codicil, in writing, or other writing of the testator, signed in the presence of at least three witnesses (either expressly revoking the former will, or inconsistent with it); (2) By burning or tearing, cancelling or obliterating the will; and (3), not found in that statute but implied by the courts, a revocation by a vital change in circumstances, such as marriage and a child born. See Schouler on Wills, 381; and cases cited in succeeding questions. 62. What two elements are necessary to a revocation by burning or tearing? They are: (1) An actual burning or tearing by the testator, or at his direction, of some part of the paper, a very little being suffi- The provisions of the Statute of Frauds on this point are considerably altered by the Wills Act. The date of English cases is therefore important. In studying American cases the wording of the statutes under which they arise should be carefully, even mi- nutely, scrutinized. PROPERTY; EEAL. 325 cient. Bibb v. Thomas, 2 W. Bl. 1043; Dan v. Brown, 4 Cow. 483, 490. (2) The animus revocandi. This must be found, for revocation is in its essence an act of the mind, the requirement of burning or the like being demanded only as an outward sign or symbol of that intention. Schouler on Wills, 384; and cases just cited. 63. What is cancellation? The word refers literally to the lattice effect produced by draw- ing lines back and forth across a page. It is clear that such cross lines may be a good cancellation, though the words remain legible; and indeed, the extreme doctrine, that the words " This is can- celled ", written on the same page, are sufficient, has been laid down. Warner v. Warner, 37 Vt. 356. Contra to this, and holding that lines drawn to effect a concellation, must carry weight by what they do, and not by what they .wry. Ladd's Will, 60 Wis. 187, with a discussion of the authorities. The animus revocandi is, of course, as necessary here as with burning or tearing; and it may.be remarked that cancellation as a means of revocation is omitted from the Statute of Victoria (see 20, 21), and from the Codes of many States. 64r. What sort of change in circumstances will operate as a revocation ? The cases of implied revocation were never numerous, but the noticeable case was (and still is) that of the will of an unmarried man, who afterwards married and had a child born. The courts said that they would annex to the will the tacit condition, that that total change of circumstances should operate as a revocation, if no provision had been made for the wife and child. Marston v. Fox, 8 Ad. & El. 14. See the statute books for the present regulations, many making marriage sufficient of itself to revoke the will. g. Probate and Administration. 65. What is an executor de son tori? At common law the term was applied to one who acted towards the estate of a deceased person as if he were the rightful executor or administrator. Read's Case, 5 Co. 67; s. c., 4 Gray, Gas. on Property, 466. He became liable to creditors to the extent of the value of the goods he took possession of, and, in general, held the position of an ordinary executor, with the exception that he could not retain from the assets for any debt due himself. Alexander v. Lane, Yelv. 137: s. c., 4 Gray, Cas. on Property, 468; Oxenham v. Clapp, 2 B. & Ad. 309. The modern rule, aided by statute, shows a regard to the good faith of the acts done, the character of the property dealt with (i. e., whether perishable or otherwise) and the relationship to the 326 QUESTIONS AND ANSWERS. deceased of the party so acting. Schouler on Executors and Ad- ministrators, 188, 189; Perkins v. Ladd, 114 Mass. 420. 66. Suppose A. dies, leaving B. executor, and then B. dies before closing up A.'s estate, but haves C. his executor. What position, toward A/s estate, does C. hold? He has no connection with A.'s estate, in most of the States. The Probate Court will appoint for A.'s estate an administrator de bonis non (administratis), who will carry on A.'s estate, accord- ing to A.'s will. His full title is administrator de bonis non cum testamento annexo. If A. had died intestate, and his administrator had also died, the succeeding appointee would have been an administrator de bonis non. Schouler on Executors and Administrators, 128. 67. Suppose a forged will is admitted to probate and a debtor of the estate pays his debt to the executor under that probate. Later, the true will is brought to light and probated. The new executor tries to collect the debt over again. Can he do so? No. The former executor was acting under the order of the court, and if he had sued the debtor the latter would have had to pay. Such payments must be protected, for the person acting for the estate was an executor de facto, and " every person is bound to pay deference to a judicial act of a court having competent jurisdiction." Allen v. Dundas, 3 Term Rep. 125; Kittredge v. Folsom, 8 N. H. 98. 68. What rights of action survive a man's death so that his personal representative can bring suit upon them? 1. All rights founded on contracts broken in the lifetime of the deceased, even though relating to real estate. Raymond v. Fitch, 2 C. M. & R. 588. 2. Rights founded on torts (though without an accompanying breach of contract), which diminished the value of the decedent's personal estate, (by virtue of Stat. 4 Edw. Ill, chap. 7). Baker v. Crandall. 78 Mo. 784; s. c., 47 Am. Rep. 126. But in both (1) and (2), if the substance of the injury was really physicial, as when the only injury to the deceased was medical expenses, or an injury to the feelings, the action does not survive. Chamberlain v. William- son, 2 M. & S. 408 (breach of promise); Wolf v. Wall, 40 Ohio St. 111. 3. There are various modern statutory enlargements of the com- mon-law rule, the commonest of which is that permitting recovery for a wrongful act, or neglect, causing death. In this case, how- ever, the executor sues as trustee for the widow, children or next of kin, and not to recover assets for creditors. Whiti'ord v. R. R. Co., "73 N. Y. 465: Richardson v. R. R. Co., 98 Mass. 85. PROPERTY; EEAL. 327 69. Whaf is the nth as to the survival of claims against a man existing at the time of his death? At common law, actions founded in contract survived, those founded in tort did not. Schouler on Executors and Adminis- trators, 366, 370; Jenkins v. French, 58 N. H. 532. But statutes in many of the States alter this, to include at least a recovery of damages to the personal estate of the plaintiff, which are charge- able to the deceased. Schouler on Executors and Administrators, 373. 70. What is the title by which an executor holds the personal property of the deceased? Is it safe to buy of him? An executor is a " legal trustee," so to speak. He holds the title to the estate, not in his own right, but for the benefit of creditors of the deceased, and others entitled; in other words, his own personal creditors cannot take the goods belonging to the es- tate. Farr v. Newman, 4 Term Rep. 621. It is safe to buy of him, because it is within the ordinary line of duty for him to sell, in order to pay the debts 01 the deceased. To enable him, therefore, to sell readily, purchasers must be pro- tected. Whale v. Booth, 4 Term Rep. 625, note; Hutohins v. Bank, 12 Met. 421. But notice that the sale is not for a proper purpose will render the buyer liable to account for the property so acquired. Field v. Schieffelin, 7 Johns. Ch. (N. Y.) 150; Hutchins v. Bank, supra. h. Legacies and Devises. 71. Define lapsed and void legacies and devises, and state the effect of their lapsing or being void. A lapse occurs by the death of the legatee or devisee before that of the testator. Void legacies or devises are those which are of no effect from illegality, nonexistence of a grantee competent to take, or the like. Lapsed and void legacies go to the residuary legatee because a will of personalty speaks from the death of the testator, and so takes effect upon the personalty in his possession at that time, rather than as it existed when the will was mada Lapsed and void devises, on the other hand, go to the heirs-at-law, for the reason that in a will of realty the intent of the testator at the date of the wjll must be considered, and that as he has then specifically pointed out someone other than the residuary devisee, the latter is shut out. Tiedeman on Real Property, 885; Greene v. Dennis, 6 Conn. 292 And this distinction between realty and personalty is unfortu- nately continued in eome States, even where, by statute, a will of realty speaks from the death. Massey's Appeal, 88 Penn. St. 470; 328 QUESTIONS AND ANSWERS. Van Cortlandt v. Kip, 1 Hill (N. Y.), 590. Contra, Thayer v. Wellington, 9 Allen, 283; Drew v. Wakefield, 54 Me. 291. 72. Explain the terms " abatement " and " ademption," and distinguish the latter from " advancement " and " satisfaction."' When the property left by a testator is not sufficient to meet his legacies and devises and also to pay his debts, the question arises, " Which legacies or devises shall be sacrificed to pay the debts?" or in other words, "Which ones shall abatef" In the absence of directions in the will on the subject, the order of abatement is as follows: 1. The residuary estate, including even real estate, if realty and personalty are blended by the will into one residuary fund. (But see Lupton v. Lupton, 2 Johns. Oh. (N. Y.) 623; Gridley v. An- drews, 8 Conn. 1.) 2. General legacies. 3. Specific legacies and devises, including residuary devises, if separated from residuary bequests. 2 Woerner, Am. Law of Administration, 451, 452; Corwine v. Corwine, 24 N. J. Eq. 579; Lewis v. Darling, 16 How. 1, 10. The abatement in each of these several classes is, of course, pro raid. Titus v. Titus, 26 N. J. Eq. 11 1. These rules are not uniform, and the student should examine the statutes of his own State. An ademption or " taking away " of a legacy takes place when, (on account of the occurrence of certain events), it has either be- come impossible to carry out the directions of the will, or. the courts presume a change of intention on the part of the testator, and, therefore, disregard the will in that particular. Thus, if X. gives Y. by will his k< horse, Ned," and subsequently X. sells that horse or the horse dies, the legacy is adeemed. There is nothing left upon which the will can operate. Harvard, etc. v. Tufts, 151 Mass. 76; Blackstone v. Blackstone, 3 Watts (Penn.), 335. The above is an ademption of a specific legacy and is wholly independent of the motive or intention of the testator. When, however, the will gives a certain sum of money and the testator, sub- sequently, in his lifetime, makes a gift to the legatee, it is entirely a question of his intention whether the legacy is adeemed or not. If the testator is in loco parcntis to the legatee and the gift is of the same nature as the legacy, or is made to accomplish a specific purpose named as the object of the testamentary gift, it is held that this sihows the testator's intention to anticipate either wholly or pro tanto the gift in the will; the court presumes that one in loco parentis means to treat alike all those to whom he owes the parental duty, and intends the gift inter vivos to be in lieu of the legacy and not in addition to it. Langdon v. Astor, 16 N. Y. 9; Eichards. v. Humphreys, 15 Pick. 133. PROPERTY; REAL. 329 " Advancement," when correctly used, means a gift made under similar circumstances, except that the gift is substituted for the share to which the donee would be entitled as distributee on the death of the donor intestate. Johnson v. Belden, 20 Conn. 324. " Satisfaction," which is often used to describe what is really an ademption, properly refers to a gift by will by which a person ex- tinguishes a prior obligation. To this, of course, the consent of the other party to the obligation is essential, which is not true of an ademption. In the latter, since a will creates no obligation what- ever, the testator is only exercising his power to do as he chooses with his own, while in the former he is doing what he is already bound to do, but in a different way, and subject to the assent of his obligee. 1 Pom. Eq. Jur., 524. VI. MISCELLANEOUS TOPICS; INCLUDING FIXTURES ANE MORTGAGES. a. Fixtures. 73. What is a fixture? A satisfactory definition is admittedly almost impossible, for th\ cases use the term in so many different senses. Bouvier's is as fol- lows (and is substantially that given by Baron Parke in Hallen v. Eunder, 1 C. M. & E. 266): " Personal chattels affixed to real es- tate, which may be severed and removed by the party who hai affixed them or by his personal representatives, against the will of the owner of the freehold." This points out the salient feature essential to a fixture, viz., that it be annexed but removable, and so is perhaps as acceptable a description as there is, although in many cases there is talk of fixtures as if there were two classes, those removable and those not removable. Articles not re- movable are real estate and nothing else. Whether fixtures are real or personal estate has been much diS' cussed, especially in regard to those annexed by a tenant for years. The most acceptable result is probably that they are real estate while af- fixed, and that the right of the tenant to remove them is a right to turn the real estate of the landlord into personal estate of the tenant, during the term. Hallen v. Runder. supra. Though this right can be attached on fieri facias (Poole's Case, 1 Salk. 368), the sale of it is not a sale of real estate, for the real estate belongs to the landlord. Neither is it a sale of personal estate, because the chattels are annexed and have, temporarily at least, lost thereby their character as goods and chattels. Mackintosh v. Trotter, 3 M. & W. 184. But see Bostwick v. Leach, 3 Day (Conn.!, 476. 74. Upon what circumstances does the removability of a thing attached to the freehold depend? It is a question of the intention of the person who annexed them, though sometimes, as when bricks are built into a house, 330 QUESTIONS AND AXSWEES. the fact that removal would involve a reduction into materials settles conclusively that the intention was to make a permanent addition to the realty. Whitehead v. Bennett, 27 L. J. Ch. 474. The leading considerations are the character of the article an- nexed and the use to which it is put, the mode of annexation, and the relation to the land held by the party annexing, i. e., whether owner in fee or tenant. For example, if the question arises between mortgagor in possession and mortgagee (on a foreclosure) as to annexations made before the mortgage, the advantage is with the mortgagee, for articles so affixed to the freehold were probably for its permanent improvement: and the same advantage holds for the heir against the executor, or the vendee against the vendor. Crane v. Brigham, 11 N. J. Eq. 29. On the other hand, if the party annexing is a tenant only, the advantage is with him, for there is ever} 7 reason to think he wishes to subserve his own convenience rather than enhance the value of the realty. Capen v. Peckham, 35 Conn. 88. (Both cases give a general discussion.) 75. In what classes of cases is removal of articles annexed to the land most freely allowed? In cases arising between landlord and tenant; (a) where the an- nexation has been for purposes of domestic use or convenience; Grymes v. Boweren, 6 Bing. 437; Vaughen v. Haldeman, 33 Penn. St. 522; and (b) where the annexation has been for purposes of trade. The latter is the largest exception to the general rule and is based partly on the presumption that the tenant intended only a temporary attachment, and partly on the public policy of fostering the growth and development of trade. It includes such articles as vats, some kinds of engines, counters, and the like, and is a doctrine universally recognized. Van Ness y. Pacard, 2 Pet. 137; Guthrie v. Jones, 108 Mass. 191. But if severance wijl necessitate material injury to the freehold, no removal is allowable. Buckland v. But- terfield, 2 Brod. & B. 54 (conservatory attached to a house); 1 'Wash- burn on Real Property, p. 148. In all cases the removal must oe made before the expiration of the lease, or within a reasonable time thereafter if it ends at a time not previously determinable, e. g., the death of a tenant for life. Tiedeman on Real Property, 7, and notes; Torrey v. Burnett, 38 K J. Law, 457; Watriss v. Bank, etc., 124 Mass. 571. b. Mortgages. 76. Under the strict rules of the common law, what was the relation of the mortgagor and mortgagee as to the land mort- gaged? What is it now? At common law a mortgage furnished a perfect example of a condition subsequent. The full legal title was vested in the mort- PROPERTY; REAL. 331 gagee, subject only to be divested by the performance of the condition by the mortgagor. The latter held only a sort of reversionary interest, conditional upon his payment of the debt or performance of the obligation to secure which the transfer was made, on or before the " law day," or time limited for so doing. Upon his failure to so act, the mortgagee's estate instantly became absolute, in spite of any accident or mistake, and even if the value of the land was far in excess of the mortgage debt. Tiedeman on Eeal Property, 296, 299; 2 Washburn on Real Property, pp. 96, 100. Their present relation grows out of the recognition by courts of equity of the real nature of the transaction, viz., that it is merely a security for the doing of the act named as the condition. Equity, in view of the facts of the case and the frequent harshness with which the rules' of law operated, introduced a system of its own, which protected the interests of the mortgagor, while doing no in- justice to the mortgagee. This was by allowing the former, after breach of the condition named in the mortgage, to redeem the land "by payment of the debt with interest. Being recognized only in courts of equity this right was known as the equity of redemption. Tiedeman, supra, 299, 300; 2 Washburn on Real Property, p. 97, In the various States, various positions are taken, the divergence being due to the different degrees in which the equitable treatment of the case has forced itself upon the law courts. In Xe\v England, Xew Jersey, Alabama and some other States, a mortgage is still re- garded as actually conveying the legal title of the land. In nu- merous other States, headed by Xew York and California, it is held to create a lien only. Tiedeman on Real Property, 301. The statutes and decisions of each State, however, must be studied, to find the exact stage of development there prevailing. 77. X., who owed Y. a sum of money, conveyed Blackacre to him by an absolute deed. There was a verbal understanding that if X. paid the debt within a year, Y. should retransfer the land. Some weeks after the year expired, X. made tender of the debt, with interest, and demanded a conveyance. Y. refused to comply. May the facts of the transaction be shown ? It is well settled that they may in spite of the " parol evidence " rule, and irrespective of fraud, mistake or accident, the ordinary grounds for equitable action. Any legal evidence, written or verbal. may be used, the object being to " look through the forms of a transaction and give effect to it, so as to cam- out the substantial intent of the parties." Horn v. Keteltas, 46 K Y. 605; Sweet v. Parker, 22 X. J. Eq. 453. Such an arrangement is frequently hard to distinguish from an agreement that the grantor of land may repurchase. If the grantor remains in possession and pays interest on the sum due the grantee, it is strong evidence that the deed is intended 332 QUESTIONS AND ANSWERS. as security only. But if these elements are absent, or if other evidence overbalances them, the effect of the transaction, will be an absolute conveyance with a contract for repurchase. Obviously, in the latter case, the grantor is in a less advantageous, position, for there is no " equity of redemption " after the stipu- lated time passes, and he must also show an agreement satisfying the Statute of Frauds to enable the court to compel a reconveyance. Tiedeman on Eeal Property, 304, 305, 307; Hogan v. Jaques, 19 N. J. Eq. 124, 128. It should be noted that in a few States parol proof to show an absolute deed was intended as a mortgage is only admitted when fraud, accident or mistake appear. Tiedeman, supra; Brainerd v. Brainerd, 15 Conn. 575. But see French v. Burns, 35 Conn. 359. 78. What is the meaning of the maxim, " Once a mortgage, always a mortgage " ? It refers especially to cases where the parties have agreed, on the execution of a mortgage (or subsequently), that title shall vest abso- lutely in the mortgagee, if the debt is not paid at the time it becomes due by the terms of the deed. In short, they endeavor to bargain away the protection of the equity of redemption. Such an agree- ment is unenforceable. The possibilities for duress and oppression, arising from the embarrassed condition of the mortgagor, are so- great that courts of equity refuse to recognize the validity of agree- ments of the kind described. Henry v. Davis, 7 Johns. Ch. (X. Y.) 40; Bailey v. Bailey, 5 Gray, 505. 79. X. mortgages his land to Y. Y. dies, and X. pays up the debt. Who gives the release of the mortgage, Y.'s administrator or his heir? At common law, since the time of Charles II, the mortgage has been considered as personal assets, and as, therefore, going to the executor; but the title to the land was held to vest in the heir as trustee for the personal representative. 2 Washburn on Real Prop- erty, p. 141. The equitable doctrine, however, has been so far developed that even in the States holding that the mortgagee is the owner of the legal title, his heir is shut out. A conveyance from him transfers nothing, and land acquired by a mortgagee's ad- ministrator, under foreclosure, is distributed as personalty. Taft v. Stevens, 3 Gray, 504; Pierce v. Brown, 24 Vt. 165. In New York and the States following it in holding the mortgage a lien only, the heir of th'e mortgagee, of course, takes nothing whatever. 80. What sort of property is the equity of redemption ? As its name implies, and as explained above, it was originally re- cognized only in equity. At present, it is almost everywhere held PROPERTY; EEAL. 333 to have all the qualities of a legal estate, such as liability to sale on execution; White v. Whitney, 3 Met. 81, 84; Punderson v. Brown, 1 Day, 98; dower to the wife of the mortgagor; Hinchman v. Stiles, 9 N. J. Eq. 454; and the like. And see Norwich v. Hubbard, 22 Conn. 587. 81. How does a mortgagee realize upon the security, if the debt is not paid? As explained above (No. 76), at common law the mortgagee's title became absolute if the debt was not paid by the time set. Under the equitable rule, however, a foreclosure is necessary to fix the additional time thus available to the mortgagor. At present the two commonest kinds of foreclosure are known re- spectively as strict foreclosure and equitable foreclosure. By the former a decree is passed forever barring the mortgagor from making redemption unless he does so within a time named. This is obviously nothing but a more or less lenient application of the common-law rule, and renders the title of the mortgagee abso- lute in the same way. Brainerd v. Cooper, 10 N. Y. 456; 2 Wash- burn on Real Property, pp. 237, 238. By equitable foreclosure the land is sold, in a manner varying in "the different States, and the proceeds applied to the satisfaction of the debt. The surplus, if any, belongs to the mortgagor. See a long note. 2 Washburn on Real Property, at the end of book 1, chap. 16, giving a summary of the process of each State. c. Emblements. 82. X. is tenant for the life of Y. He plants, during the spring, a field of corn. Earlu in the summer his estate is termi- nated by the death of Y. May he enter thereafter to take the corn ? And may he take fruits which were ripening when his es- tate ended? X. may enter, until the following spring, to care for and gather the corn, but not to take the product of the fruit trees. Crops which require care and labor (fnicttis industrialcs), and which have been planted by the tenant of an estate of uncertain duration (ex- cept estates at sufferance), but not harvested when the estate is ter- minated, are called emblements. He is allowed to enter and gather such crops, both because he could not foresee the end of his es- tate, and to encourage husbandry by insuring to him the results of his exertions. 1 Washburn on Real Property, bk. 1, chap. V, 3; Debow v. Colfax, 5 Halst. 128. The rule applies only to crops which are ordinarily of annual growth. Graves v. Weld, 5 B. & Ad. 105. But these considerations do not apply to those products requiring no cultivation, such as fruits. See 1 Washburn, supra. 334 QUESTIONS AND ANSWERS. d. Ejectment. 83. Describe the action of ejectment. This is of the class of mixed actions; that is, by it the possession of land is recovered, and also damages for t>e period during which the injured party has been ousted. In its origin this action was used by a tenant for years to recover possession of his term when he had been ejected: but from its sim- plicity compared with common law " real " actions it was applied to the purpose of trying title to the premises by the following process: The claimant X. would make an entry on the land, and there make a lease to Y., who would remain until ejected by the person in possession or by a casual ejector, Z. Y. would then sue the one who had thrown him out. To succeed he must show four things; title in X., lease to himself, entry and ouster. The title of the claimant was thus brought necessarily though incidentally into issue. Before long, the formal entry, lease and ouster were found cum- bersome and were given up. An action was brought by X. against the casual ejector in the form, Y. on the demise of X. v. Z., ^ut Y. and Z. and the entry, lease and ouster were fictitious. To bring; in the real defendant notice was sent him in ^be name of Z., stating that Z. had been sued and that judgment would be entered up unless he paid attention to the warning and came in to defend. The court, on his confessing the lease from X. to Y., and Y.'s entry and ouster, admitted him as a co-defendant, and the question of the title of X. thus became the only issue. Later, the interposition of Z. fell into disuse, and the suit was brought directly against the real de- fendant. The cardinal rule, governing the action, is that the plain- tiff must recover by the strength of his own title rather than by the weakness of the defendant's: for mere possession is suflVient against anything but a superior title. See 3 Bl. Com. 199-20P: 1 Chitty on' Plead. 187, ff. e. Waste. 84. What is waste ? Liability for waste attaches to a tenant for life or years in favor of the remainderman or reversioner, and accrues on his doing or suffering to be done upon the premises that which *' does a lasting damage to the freehold or inheritance, and tends to the permanent loss of the owner in fee." 1 Washburn on Seal Property, p. 140. Originally, estates in dower or curtesy were the only ones subject to i,t, the theory being that as the law created those estates it ought to protect the owners of future estates. Waste is either voluntary, as by tearing down a house, or per- missive, as by allowing it to go to decay for want of repair, and at common law it extended to any alteration, such as taking out a par- tition or changing woodland into meadow. Whether the inheritance has suffered is, however, a pure question of fact, and the application PROPERTY; REAL. 335 of the rule varies with the location of the premises, their condition and local usage. Clearing land of timber, for example, would in some cases, be necessary for good husbandry. A tenant who has been freed from the restriction is said to hold " without impeach- ment of wasta." See on the whole subject, 1 "Washburn on Real Property, bk. 1, chap. V, 4 (summary of statutes, p. 15T. note); Agate v. Lowenbein, 57 N. Y. 604; Keeler v. Eastman, 11 Vt. 293. Damages now are generally limited to actual loss suffered, and if irreparable injury is threatened, equity will grant an injunction to restrain the tenant. 1 Washburn, supra, p. 160, and cases. f. Eviction. 85. Give the difference between actual and constructive eviction. Actual eviction consists in physically depriving the tenant of his estate, either in whole or in part. Constructive eviction takes place when the landlord does some act which tends to render the leasehold untenantable, or which will prevent its being used for the purposes for which it was leased, but does not corporeally deprive the tenant of the land. Gilhooley v. Washington, 4 N". Y. 217; Dyett v. Pendleton, 8 Cow. 727; Bart- lett v. Farrington, 120 Mass. 284. 86. State the effect upon the tenant's liability to pay rent, of an eviction by the landlord and an eviction by a stranger. The following rules are said by Washburn to govern: " If there has been an eviction from the whole premises by the lawful act of a stranger, the whole rent of the premises is suspended. If such eviction be from a part only of the premises, the rent will be ap- portioned and a part suspended, according to the relative value of the premises from which the tenant is evicted. But if the eviction be by act of the lessor, or by his procurement and authority, the rent of the entire premises will be suspended while such eviction continues, whether it be of the whole premises, or of a part of them." (And on such eviction by the lessor the tenant has also the option to terminate the lease entirely.) 1 Washburn on Real Prop- erty, p. 533; Leishman v. White, 1 Allen, 489. 336 QUESTIONS AND ANSWERS. VII. RESTRAINTS ON ALIENATION. 1. A devised land to B. for life, with the condition that if B. alienated, the land should go to C. in fee, and with the condition that if C. alienated, the land should revert to A. B. conveyed to D., who shortly after obtained a conveyance from C. also. What in- terests do A. and D. take? A. takes nothing. D. takes a fee simple. The law upholds pro- visions for forfeiture or for a gift over upon alienation when im- posed on a life estate. Hurst v. Hurst, L. R., 21 Gh. Div. 278; Bull v. Kentucky Bank, 90 Ky. 452; Waldo v. Cummings, 45 {11. 421. Such provisions are good as applied to involuntary as well as to voluntary alienation, for a testator has power "to declare effectually that the bequest shall cease on the happening of an event which would subject it to the claims of creditors and then to give it a different direction." Comstock, J., in Bramhall v. Ferris, 14 X. Y. 41. This rule, as shown by the foregoing authorities, ap- plies alike to realty and to personalty. Accordingly B.'s convey- ance to D. was invalid and the effect of it was to vest the fee in C. C/s conveyance to D., however, passed the fee to D., for the for- feiture clause which was attached to C.'s estate was invalid. In the case of a fee simple a general and unlimited condition of for- feiture upon alienation cannot be imposed. In re Dugdale, L. R., 38 Ch. Div. 176; Potter v. Couch, 141 U. S. 296. This again ap- plies to personalty, except chattels real, as well as to realty. Brad- ley v. Peixoto, 31 Ves. Jr. 324. Hence C., having an alienable fee, has conveyed to D. validly. In general it may be said that the closer the relation between the grantor and grantee the more readily provisions for forfeiture upon alienation are upheld. Thus, in the case of a lease, where the close relation of landlord and tenant exists, such provisions are extremely common and their validity is perfectly settled. " It is reasonable that a landlord should exercise his judgment with respect to the person to whom he intrusts the management of his estate." Ashurst, J., in Roe d. Hunter v. Galliers, 2 T. R. 133. As noted above, such provisions are good in the case of life interests, and they are also valid as applied to estates tail. Gray, Restraints on Alienation (2d ed.), 75. The con- dition is, however, destroyed if the entail is barred by a common re- covery, and a provision restraining the suffering of a recovery is invalid. Dawkins v. Lord Penrhyn, L. R., 6 Ch. Div. 318. Where the estate is a fee provisions for forfeiture are sometimes held to take effect in special cases. Provisions which, while permitting alien- ation, restrict tlie persons to whom the estate can be alienated, have been upheld, even where the restriction was a very sweeping one. Doe d. Gill v. Pearson, 6 East. 173; see Jauretche v. Proctor, 48 Pa. St.. at p. 472 Other authorities turn on the degree of the restriction: "the test is whether the condition takes away the whole power of aliena- tion substantially ; it is a question of substance and not of mere form." REAL PROPERTY. 337 In re Macleay, L,. R., 20 E X. Y. 617. Similarly, a provision attached to a present absolute gift that the donee shall be excluded for a time from possession, or that the income acctmulate for a time is, generally, bad, for there BEAT, PROPERTY. 339 again, it is attempted to qualify an absolute gift by withholding one of its inherent incidents. The donee at his majority, or his creditors, may get possession without waiting for the time fixed by the donor. Saunders v. Vautier, 4 Beav. 115; Sanford v. Lack- land, 2 Dill. (U. S.) 6; see Oxley v. Lane, 35 X. Y. 340; contra is Claflin v. Claflin, 149 Mass. 19. " The principle is simply this : That where property is given, granted, or bequeathed to certain individuals to be used, appropriated and applied for their benefit, and in such manner that no other person or persons have any in- terest in it, they thereby become in effect the absolute owners of it. and may exercise all the rights belonging to them in that relation." Merrick, J., in Smith v. Harrington, 4 Allen (Mass.), 56G. In the case supposed, B.'s fund is, accordingly, subject to the claims of the creditors. Restraints on alienation are, however, good when the gift is to a married woman. " The object of the doctrine was to give a married woman the enjoyment of property independent of her hus- band; but to secure that object, it was absolutely necessary to re- strain her during coverture from alienation. The reasoning evi- dently applies to a fee as much as to a life estate, to real .property as much as to personal." Lord Lyndhurst in Baggett v. Meux, 1 Phil. 627. But the reason of this rule and, therefore, the rule itself cease to apply when the married woman becomes a widow. Accordingly the restraint is then no longer valid. Barton v. Bris- coe, Jac. 603; see Robinson v. Randolph, 21 Fla. 629. In the case supposed, therefore, C.'s conveyance passes her interest to the trus- tee in bankruptcy. In general, restraints on the alienation of an interest for life are also bad. The courts 'are less inclined to support such an absolute stifling of the alienation of property than they are to support a forfeiture or gift over on alienation. Thus, if land is given to A. for life without power to anticipate or sell, the restraint is invalid and the property may be voluntarily or involuntarily conveyed by A. The doctrine ap- plies alike to realty and to personalty. McCleary v. Ellis. 54 Iowa, 311 ; Bridge v. Ward, 35 Wis. 087; Brandon v. Robinson, 18 Yes. Jr. 420. So in case of a trust to pay income to A. for life A.'s creditors can reach his interest, even though the time and amount of payments be in the trustee's discretion (Green v. Spicer. 1 Rues. & M. 3r5). though not if the trustee have and exercise a discretion to exclude A. from participation. Lord v. Bunn, 2 T. & C. C. 99 As regards legal inter- ests for life or years the invalidity of such restraints admits of prac- tically no exception. Halm v. Hutchinson, 159 Pa. St. 133: Wellington T. Janvrin. 60 N. H. 174. As regards equitable interests the rule holds good in England (Brandon v. Robinson, 18 Ves. Jr. 429; Graves v. Dol- 340 -QUESTIONS AND ANSWERS. phin, 1 Sim. 66), but in the United States it is subject to the exception of spendthrift trusts. See infra. 4. A. bequeathed a fund to trustees to pay the income to B. for life, to be free from'the claims of B.'s creditors. B. became bank- rupt. May the creditors reach the fund? Xo, according to the weight of authority. It will be observed that the case is not one of a limitation over on bankruptcy; on the contrary the beneficial interest in the fund is to remain in B. in spite of his bankruptcy. Under the ordinary rule, the restraint would, accordingly, be bad. See p. 339, supra. The case presents, however, one of the so-called spendthrift trusts, which are in most of the United States (not in England), -held to be valid and free from the claims of creditors. This doctrine allows an equitable life estate in realty or personalty to be given in such a way that, while the donee has the full beneficial interest in it, it is not subject to the claims of the donee's creditors. Overman's Appeal, 88 Pa. St. 276; Broadway Bank v. Adams, 133 Mass. 170; Smith v. Towers, 69 Md. 77; contra, Tillinghast v. Bradford, 5 E. I. 205; Jones v. Reese, 65 Ala. 134. " The decisions and dicta in ten states* are against the validity (of spendthrift trusts), and in twelve states! are for it; while in two statesj they are conflicting." Gray, Restraints .on Alienation (2d ed.), 177A. The United States Supreme Court, by an elaborate dictum in the case of Nichols v. Eaton, 91 U. S. 716, supported the doctrine. For an exhaustive discussion of the theory and authority relating to spendthrift trusts see Gray, id., 175 et seq. * Rhode Island. New York, North Carolina, South Carolina, Georgia, Alabama, Ohio Kentucky. New Jersey, and Arkansas. t Pennsylvania, Massachusetts, Illinois. Maine, Maryland, Mississippi, Ves- mont. Missouri, Tennessee, Delaware, Indiana, and Virginia. t Wisconsin and Connecticut. REAL PROPERTY. 341 VIII. RULE AGAINST PERPETUITIES. 1. IVhat is the Rule against Perpetuities, its Object and History? As the development of conveyancing, especially by the machinery of uses, executory devises, and trustees to preserve contingent re- mainders, rendered possible limitations which might fetter property for excessively long periods, or indeed forever, public policy made it advisable to fix a limit of remoteness beyond which a deed or devise could not be operative. This is provided by the so-called Rule against Perpetuities, which arose, by judicial legislation, dur- ing the seventeenth century. The question raised by the rule is always whether the vesting of a eiven interest is, or by any pos- sibility may be, too remote from the instrument creating it. "" The rule requires every future estate limited to arise by way of shift- ing use or executory devise to- be such as must necessarily arise within the compass of existing lives and twenty-one years there- after, with the possible addition of the period of gestation, in the case of some person entitled being a posthumous child." Williams, Real Property (17th Am. ed.), p. 465. " The terms of the rule do not import that the limitation must necessarily vest within the specified time, but only that it must necessarily vest within that time, if it vests at all." . Challis, Real Property, *146. To determine the validity of such limitation the time when the interest will vest is considered from the standpoint of the instru- ment creating it. If, in any contingency, the time of vesting may be more remote from that instrument than the rule allows, the gift is void, "even if, in its actual event, it should fall greatly within that limit." Williams, Real Property (17th Am. ed.), 466. In the earlier form of the rule, a single life was the limit of re- moteness allowed, then the twenty-one-year period was added, (Stephens v. Stephens, Gas. temp. Talbot. 228; 2 Barnard K. B. 375), whether or not there was an actual infancy (Cadell v. Palmer, 1 Cl. & F. 372), and finally the period of gestation, when a child en rentre sa mere is a party in interest. Long v. Blackall, 7 T. R. 100. The rule is often said to be a means of preventing restraints on alienation. See, for instance, Christ's Hospital v. Grainger. 1 Macn. & G. 460, at p. 464.. It seerns, however, to be directed really against remoteness of limitation. "An executory limitation to take effect on the happening of an eve which may not take place within a life in being and twenty-one vears. is not made valid hv the fact that a person in whose favor it is made can release it." Cotton, L. J., In re Hargreaves, 43 Ch. Div. 401. The rule applies to personal as well as to real property, to legal as well as to equable estates, and probably to contingent re- mainders as well as to limitations by shifting use and executory devise. On the last point see Gray. Rule against Perpetuities (2d ed.). 284 et sec/.; but cf. Cole v. Sewell. 2 H. L. C. 186. -at pr>. 230, 231: and see 1 Perry, Trusts (nth ecU, 385. as to con- tingent remainders in equity. The English courts hold that the 34i QUESTIONS AND ANSWERS. right to re-enter where the condition of a grant is broken is within the rule. Thus where trustees held property for a hospital subject to a proviso that if the property were converted to any other use, it should revert to the grantor's heirs, it was held that the proviso violated the Rule against Perpetuities, and was void. In re Hollis's Hospital, 1899, 2 Ch. 540. The law in America appears to be con- trary. Tobey v. Moore, 130 Mass. 448; see First Universalist Society v. Boland, 155 Mass. 171; Cowell v. Springs Co., 100 V. S. 55 ; but see 1 Am. L. Eev. 265. Where a limitation is void for remoteness, all estates limited to follow it are also void. 1 Jarm. Wills (5th Am. ed.), 522. 2. A. devised land to Ms son X. for life with remainder to X.'s children for life in equal shares to he held in severally with cross- remainders, and with remainder in fee to the person whom the survivor of X.'s children should % will appoint. Are the limita- tions good? The life estate to X. and the remainders to his children are clearly good, since all vest at. the time of X.'s death, and, therefore, at the expiration of one life. The cross-remainders vest at the same time (Gray, Rule against Perpetuities (2d ed.), 207), and are consequently good also. The power of appointment is, however, too remote. In con- sidering the validity of powers, two tests must be applied. (1) The donee of the power must be ascertainable, and the time when the power is to be exercised must fall within the limit of the rule. In re Hargreaves, 43 Ch. Div. 401. (2) The persons in whose favor the power actually is exercised must be within the limit of tbe rule. Blight v. Hartnoll, 19 Ch. Div. 294. In the case, supposed the first test shows the power to be invalid, for the donee of it might be a child born after A.'s death, and as he is to exercise the power by will, it may be carried far beyond the limit of tbe rule. Thus it is not enough that the donee of the power be born, or even that he take the power within the limit of the rule. Tbe power must be such that if exercised at all. it must be exercised within .the period of the rule, otherwise it is bad from the beginning. The fact that the terms of a power are so broad as to admit of its exercise in favo* of objects too remote does not invalidate the power; but if it be actually so exercised the appointment is in- valid. In the ease supposed above only a single Hfe, that of X., Is used RS the " measuring rod." . Any reasonable number of lives in being may, however, be used equally well, provided the limitations must vest within twenty-one years of the dropping of the longest oFthe lives. See Thel- lusson v. Woodford, 4 Yes. Jr. 227, at pp. 313. 320. Thus a gift to trus- tees for the use of the youngest child of any one of the eight living brothers of the donor, upon his reaehinir twenty-one, is valid. Statutes have, however, in many states limited the number of lives which may be used as the measure usually to two. New York Real Property EEAL PROPERTY. 343 Law, 32; 1 Wis. Ann. Stat. (S. & B.'s ed.), 2039. These statutes generally make the existence of restraints on alienation beyond the period of the rule the test of validity rather than the degree of remote- ness, and impose various other limitations on the creation of future es- tates. Stimsou, Am. Stat. Law, Art. 144. 3. A. devised land to A*, for life with power to appoint the fee to any person by deed or will.* X., by deed, exercised the power in favor of his daughter, Y., who was born after A.'s death, adding that the gift was to take effect upon her marriage. Was there a valid exercise of the power? A power of appointment derives its efficacy from the instrument creating the power and accordingly, to test its remoteness, the exer- cise of the power must be read as part of the original creating in- strument. In the present case, if A.'s original devise had been to Y. upon the death of X., it would have been valid, but if to Y. upon her marriage, it would clearly have been too remote, because the marriage might not take place until more than twenty-one years after X.'s death, which would carry it beyond the period of the rule. Accordingly, the appointment to Y. upon her marriage would ordinarily be too 'remote. The present case is, however, peculiar in that X. has an unlimited power of appointment by deed or will. The donee of such a power is held to be practically the owner of the fee, since he has absolute control of it, and he is. therefore, allowed to make any gift which the absolute owner of the fee might make, even though such gift be too remote from the instrument creating the power. Sugden, Powers (8th ed.), p. 394; Gray, Rule against Perpetuities (2d ed.), 477. In this connection should be noted also a class of decisions hold- ing that where an absolute gift is made, followed by a provision that the vesting be postponed to a period more remote than allowed under the rule, the qualifying provision will be rejected and the" gift be treated as absolute. "The author of the limitations in- tends the prior absolute gift to prevail, except so far only as it is effectually superseded bv the subsequent qualifying one." Lewis, Perpetuities, 535. Under this doctrine also, it would seem that the gift to Y. might be upheld. Ring v. Hardwick, 2 Beav. 352. 4. A testator bequeathed $20,000 fo trustees to invest and apply the income to the purchase of books for a public library in a certain town when and so soon as such librari/ should be established, and if such librari/ should not be established or should thereafter cease' to exist, then to apvlii the income to the support of a certain orphan asylum. Are the gifts valid under the rule? Yes. It is clear that the establishment of the library might bo at a period much more remote than that limited by the Rule against Perpetuities: and that the contingency on which the gift to the orphan asylum depended might be even more remote. But both are 344 QUESTIONS AND ANSWERS. charitable objects, and the gifts will be upheld though in ordinary cases they would be held to violate the rule. In the case of the first gift, the trustees will holJ jr a reasonable time to await the es- tablishment of a library. Sinnett v. Herbert, L. E., 7 Ch. App. 232 ; Chamberlayne v. B' ockett, L. R., 8 Ch. App. 200. When the contingency on which the second gift depends happens, the use will shift and the asylum take. Christ's Hospital v. Grainger, 1 Macn. & G. 460; Storrs Agric. School v. T hitney, 54 Conn. 342. Some authorities take the position' simply that the rule does not apply to gifts for charitv. Yeap Cheak Xeo v. Ong Cheng Xeo, L. R., 6 P.'C. 381, at p.' 394; see Hopkins v. Grimshaw, 165 U. S. 342, at p. 355. Others bring the cases within the doctrine of cy-pres* and avoid raising the questions under the rule. " If the court, however, can see an intention to make an unconditional gift to charity (and the court is very keen-sighted to discover this in- tention), then the gift will be regarded as immediate, not subject to any condition precedent, and, therefore, not within the scope of the Rule against Perpetuities. The mode pointed out by the testator is only one way, though the preferable way, of carrying out the charitable purpose; and if it cannot, with regard to the general charitable intention, be carried out in that way, it will be carried out cy-pres." Gray, Rule against Perpetuities (2d ed.), 607 ; see Allen v. Stevens, 161 X. Y. 122. Whatever view be adopted, such cases 'as that supposed above, where charity is throughout the ob- ject, are not treated as subject to the rule. It should be noted in this connection that, where the gift is to a noncharitable object with a gift over to a charity on a too remote contingency, or rice versa, the ordinary Rule against Perpetuities is applied and the gift over held void. Commissioners of Charitable Donations v. DeClifford, 1 Dr. & W. 245; Brattle Square Church v. Grant, 3 Gray (Mass.), 142; see Hopkins v. Grimshaw, 165 U. S. 342, at p. 355. In addition to cases of gifts to charity .a further exception to the rule should be noted, nainejy, that of limitations in fee tail. Obviously, these violate the rule, since the estate is to vest, not by descent, but by virtue of the creating instrument, in successive generations indef- initely.' Such an estate was, however, readily destructible at common law at the will of the tenant through the machinery of a' common recov- ery. Therefore, limitations in fee tail made by the grantor are opera- tive only until a tenant chooses to destroy them, and this fact is held to remove the reason for objecting to their remoteness. . Similarly, the validity ' of limitations to follow immcdiatcl)/ on an estate tail is upheld since a recovery which bars the entail will also extinguish those interests. Challis. Real Property, p. *146; Goodwin v. Clark, 1 Lev. 35 : Heasman v. Pearse. L. R.. 7 .Ch. 275. But if an interval exists between the determination of the estate tail and the subsequent limitation the l:itt<>r i* had, since, during such interval it would be indestructible. (Jr;:y. Rule against Perpetuities (2d ed.), 446. ' The rule of rii-pi-cx is a rule for the construrt i r>-> of instrument* in equity, by which the intention of the party is carried out r. nrar as mail he. when it would be impossible or illegal to give it literal effect." Bouv. Law Diet. REAL PROPERTY. . 345 5. A testator left money to trustees to pay $1,000 annually to each of the children of A., whenever born, from and after the time of their marriage. At the time of the testator's death, A. was liv- ing and had then two children, one of whom was married. Is the gift valid? This is not a case of an immediate gift with enjoyment post- poned, for the children's interest is not to rest until marriage. The gift, furthermore, is to a class, the children of A. In such cases ordinarily the gift is bad if too remote as to any member of the class. Pearks v. Moseley, L. R., 5 App. Gas. 714. " It is the period of vesting and not the description of the legatees, that pro- duces the incapacity. * * The bequests in question are not made to individuals but to classes; and what I have to determine is whether the class can take." Grant, M. R., in Leake v. Robin- son, 2 Mer. 363, at pp. 388, 390. Accordingly, a gift such as that supposed would ordinarily be void. An exception is, however, made in -cases where a definite share is set off to each member of the class. There the gift will be held divisible, and such members of the class as come within the limit of remoteness may take. See Storrs v. Benbow, 3 DeG. M. & G.. 390, at p. 397; Boughton v. Boughton, 1 H. L. C. 406, at p. 414. So in the case supposed the married child of A. takes at once and the other will take upon marriage. Clearly, as applied to children of A., born after the testator's death, the time of vesting might be too remote. Siich children therefore would not take. Where an immediate gift to a class is made it is held that the class is closed upon the execution of the deed, or, if the gift is by will, upon the death of the testator, for the gift is to vest at that time. Thus a devise to the children of A., who attain twenty-five years of age, is con- fined to such children of A. as are born at the time the will takes effect. "A gift to a class not preceded by any life estate is a gift to such of the class as are living at the death of the testator." Malins, V. C.,' in Picken v. Matthews, L. R., 10 Ch. Div. 204. at p. 267. By thus shut- ting out afterborn children the gift is saved from the vice of remoteness. Where, however, the gift to the class is preceded by a particular es- tate, such as to defer its vesting until the expiration of the particular estate, the class is not considered closed until the particular estate has terminated. " Where the legacy is given * * * with any sus- pension of the time so as to make the gift take place * * * at a future period, then such children shall take as are living at that period." Lord Thurlow in Singleton v. Gilbert, 1 Cox Ch. Cas. 68, at p. 71. This may. of course, render the gift too remote. Where each member of a class is to take on a certain contingency - attaining a specified age, etc. the class closes when the contingency first happens to. one of its members. Andrews v. Partington. 3 Bro. Ch. 401 : see Iloste v. Pratt. 3 Ves. Jr. 730. Thes? so-ni-wlnt arbi- trary rules are rules of convenience designed to fix an early aivl def- inite time when the class can be closed and the number of shares be known. - CONTRACTS. I. NATURE OF THE OBLIGATION. 1. What are the sources of quasi-contrads, and how is the designation appropriate ? Quasi-contracts may be said, in general, to rest: 1. Upon a record of court. 2. Upon a statutory, official or customary duty. 3. Upon the doctrin^ that no one shall be allowed to enrich himself unjustly at the expense of another. It has long been settled, that a man might bring an action in contract, to recover the amount of a money judgment; O'Brien v. Young, 95 N. Y. 428, 432; or that where a statute directed the payment of certain money for the support of paupers, an action in contract would lie for the money. Millford v. Commonwealth, 144 Mass. (M. An innkeeper or common carrier can also be forced by suit to perform his customary duty towards an individual, .and an insane person can be sued in contract for necessaries fur- nished him. From these illustrations, the appropriateness of the designation is most apparent. In all of these cases there is a duty placed upon a man to do something, but in no one of them is there a contract based upon the agreement of the parties. The duty is only ^d^'-contractual. It exists solely by operation of law and is always independent of any real agreement, and often counter to expressed intentions. The obligation is one of an equitable character only. Keener on Quasi-Contracts, 16-20. The greater majority of cases in which recovery is allowed, in quasi- contract, are based upon the principle of unjust enrichment. The courts are loath to allow a defendant to keep property which he ought not to have, and to which the plaintiff is really entitled. They will not interfere, however, when that is not the real state of facts. If the defendant no longer has the property, and has changed his position so that he would be a loser, if forced to pay the plaintiff, a case of unjust enrichment is not presented. 4 Harv. L. Iiev. 310, and note 1, cases collected; Curnen v. Mayor, 79 N. Y. 511. 346 QlJASI-CONTRACTS. 347 II. FAILURE OF CONSIDERATION. a. Mistake. 1. MISTAKE OF LAW OR FACT. 2. A. pays B. $1,000, being mistaken as to the material facts on which the debt was supposed to arise. Can he recover the amount so paid ? Yes. It has always been held that a man should not be allowed to keep money for his own unjust enrichment, which has been pfrid him through a mistake of the facts. Keener on Quasi-Con- tracts, p. 26 et seq. 3. A statute fixed the value of sterling money in the currency of the State. Through a mistake, as to this law, A. paid B. more money than was due him. Could he recover it? No. It is fixed law in England, and in most of the States of this country, that money paid under mistake of latv cannot be recov- ered. Bilbie v. Lumley, 2 East, 469; Clarke v. Butcher, 9 Cow. (N. Y.) 674. The law in Connecticut is contra. Northrop v. Graves, 19 Conn. 548. Georgia, Kentucky and South Carolina are doubtful. Keener on Quasi-Contracts, p. 85. Previous to the decision of Bilbie v. Lumley (supra), the law was to the effect that a recover}' was allowed whether the mistake was of law or fact. The courts saw no reason for a distinction, and no sound reason ever has been advanced. The reason usually given la that a man is presumed to know the law. In the case of a crime or a, tort, the ignorance of the law cannot, of course, be advanced by the guilty party, to excuse him for the wrong done. Public policy demands that statutes shall be enforced. But there is certainly no public policy which demands that a man, who has become possessed of another's property, shall be allowed to keep it. A fiction is sometimes resorted to by courts for the sake of working justice, but here so preposterous a fiction as a presumption that a man knows all the law is set up to Tvork injustice. This rule is attacked on all sides, but unfortunately the objections were only urged after the law had become fixed. The weakness of the present state of the law is the more manifest, when it is remembered that recovery for mistake, though allowed in courts of law, is really an equitable action, and yet a court of equity lias never held that there was a distinction between a mistake of law and a mistake of fact, though there are' some dicta that equity will allow recovery. Sea Danlell v. Sinclair, 6 App. Gas. 18*; Canedy v. Marcy, 13 Gray, 373, 377; Kennarri v. George, 44 N. H. 440, 446. 4.. A promised to give B. a note bearing interest. By a mis- take, the interest clause was omitted, lut A., in ignorance of that 348 QUESTIONS AND ANSWERS. fact, paid the interest for a year, and now sues to recover the amount so paid. Should he succeed? No. Whether the mistake be one of law or fact, recovery is only allowed in a case where the defendant has been, unjustly enriched. When he is entitled to the payment in good conscience, a court will not deprive him of it, even though they could not have put him in possession of it originally. Buel v. Boughton, 2 Den. 91. On the same principle, money paid in ignorance of the fact that the Statute of Limitations has run cannot be recovered. Hubbard v. Hickman, 4 Bush (Ky.), 204. 5. A. pays B., an agent, $100, by mistake, for which neither party is responsible. B. pays to his principal, who is now insolvent, so that B. must bear the entire loss personally if A. re- covers the money. Should a recovery be allowed? The law is that a recovery is possible. Corn Exchange Bk. v. Nassau Bk., 91 N. Y. 74. On principle, however, the result should be otherwise. The defendant has so changed his position, that the unjust enrichment no longer exists. Blake v. Metzgar, 150 Penn. St. 291; Keener on Quasi-OWtracts, p. GT. Where, however, in such a case, the mistake was due to the plaintiff's negligence, his recovery should be barred. Walker v. Conant, 65 Mich. 194. But if the defendant has not changed his positicfn, the negligence is generally held to be no bar to the plaintiff's recovery. Devine v. Edwards, 101 111. 138; Brown v. Road Co., 56 Ind. 110-115. 6. A. agrees to pay B. $1,000 per year for the use of a pat- entcd process. After two years, A. learns that the patent was not good and sues for the money paid. Should he recover? No. The law is settled, both in England and the United States, that a recover} 7 under such circumstances will not be allowed. The plaintiff has -had the enjoyment of what he stipulated for, and would never have assumed those privileges, except upon the con- tract. Taylor v. Hare, 1 B. & P. N. R. 260. This case has been almost universally followed. But see Keener on Quasi-Contracts, p. 37. 6, a. A., irho is in partnership with B., acting without avilior- ity, but for a firm purpose, makes a sealed contract with X. for the construction of a dam. A. and B. dissolve partnership, and X. sues A. and B. as partners. Can he recover against both? Yes. While B. is not liable upon the contract, still X. has an equitable claim for his work, labor and materials, and so far as these benefited the firm before dissolution, B. is liable. Van Deusen v. Blum, IS Pick. (Mass ) 229. QUASI-COXTRACTS. 349 2. MISTAKE AS TO VALIDITY. 7. A. is a bona fide holder of a bill of exchange, drawn upon B., in which the drawer s name is forged. B. pays the bill be- fore he learns of the forgery, and then seeks to recover the money. Should he succeed? No. It is a question of who shall suffer the loss, and the courts will not transfer it from one party to the other, when both are equally innocent. A. has in no way acted against conscience, and having the legal title to the money, may keep it. Price v. Xeal, 3 Burr. 1354; Leather v. Simpson, L. B. 11 Eq. 398. See also * Harv. L. Rev. 297-310. The reason often given for refusing to allow B. to recover is that he should know the signature of his drawer, and was negligent in not discovering the forgery. The insufficiency of this explanation is mani- fest, however, from the fact that the result*could not be changed by showing that the forgery was such that no one could detect it The. better reason is that where both parties are innocent, the law will not Interfere and the loss will be allowed to remain where it fell. So, also, lu the above case, if B. had accepted the bill but refused to pay it on discovering the. forgery, the court would not interfere with A.'s legal rights, and he could force. B. to honor his acceptance. Bass v. Clive, 4 Maule & Selw. 13. Where, also, a forged bill or note is sold before maturity, the good faith of the vendor will not avail him, and the purchaser can recover tlamasres from him. A vendor warrants the validity of his papor. Dela- ware Bank v. Jarvis, 20 N. Y. 226; Gurney v. Womersley, 4 E. & B. 133. 8. A. paid a bill drawn on him in which the signatures were all good, but the body of the bill had been changed by increasing the amount. Could A. recover the money so paid to a bona fide holder of the bill? Yes. There should be no distinction, on principle, between for- geries of signatures and in the body of the paper; but it is generally held in this country, that a forgery in the body will allow recovery. Bank of (Jommorce v. Union Bank, 3 N. Y. 230. See Bills and Notes, Ques. 19. 9. A., acting in good faith, buys P not? which was properly made by B., but the indorsement to A. is a forgery. B. pays at maturity, and then, learning of the forgery, sues to recover. Should he succeed? Yes. No matter what the good faith of A., he must shoir a good title to his paper, which he could never get by a forged indorsement. Canal Bank v. Bank of Albany. 1 HilJ (N. Y.), 287. See Bills and Notes, Ques 19. QUESTIONS AND ANSWERS. 3. MISTAKE AS TO TITLE. 10. A., acting in good faith, sells B. a horse, which A. has in his possession, and a piece of land, without an express warranty of title in either case. If A. has no title to either the horse or the land, what are B.'s rights? In the case of the horse, B. could recover the money paid. In England the recovery is based on failure of consideration. Morley v. Attenborough, 3 Ex. 500, 513-514; Gurney v. Womersley, 4 E. & B. 133. In the United States, the general rule is that possession of personal property implies title, and in every case of the sale of personal property in possession there is an implied warranty of title in the vendor. Burt v. Dewey, 40 N. Y. 283, 284; Dorr v. Fisher, 55 Mass. 271, 273. There is, however, no implied warranty when the goods are in the possession of a third party. Benjamin on Sales, 607, 630, 64^ B. could not, however, recover the money paid for the land. Where realty is purchased, the warranty must be expressed, if there is to be a right to recover. Of course, A. could not keep the money if he knew of his defect of title at the time of the sale. CLare v. Lamb, L. E. 10 C. P. 334. The difference between the sales of personalty and realty, in that the vendor Is held to warrant one and not the other, is due to historical reasons. Originally, it was held that an express stipulation was neces- sary in every case, or otherwise the maxim caveat emptor was applied with full vigor. Broom's Maxims, 768. In the case of realty the old rule has survived and a man must still have a warranty deed, or he has no warranty at all. 4. MISTAKE AS TO EXISTENCE OF SUBJECT-MATTER. ' 11. A. gives B. a deed, without warranty, to certain land r acting bona fide. It afterwards appears that there is no such- land as that described. Can B. recover the money paid? Yes. Though there was no warranty, it is held that the prop- erty must, at least, be in existence in order to enable a vendor to- keep the money. Hitchcock v. Giddings. 4 Price, 135. Similarly, if A. sells B. goods under a mutual mistake as to their identity, and B. finds, for instance, that he has secured a domestic bill of exchange, instead of a foreign one, for which he contracted, he can recover the money paid. Gompertz v. Bartlett. 2 F. & B. 849. b. Failure of Defendant to Perform Contract. 1. DEFENDANT RELYING UPON STATUTE OF FRAUDS. 12. A. made an oral agreement with B., by which A. was to make improvements on B.'s land, and B. was to give A. a lease QUASI-CONTRACTS. 351 for two years. After the improvements, B. refused to give the lease, saying that the contract could ndt be enforced under the Statute of Frauds. What are A.'s rights, if any? A. may recover the amount by which B. has actually been bene- fited by the improvements. The Statute of Frauds is a complete bar to an action for specific performance, or any other action based upon the contract, as such, but the court will not allow the defend- ant to set up the statute, and still keep the benefits conferred by the plaintiff in expectation of the performance of the contract. Wil- liams v. Bemis, 108 Mass. 91; Gray v. Hill, Ry. & M. 420. 13. A. agreed orally to convey a piece of land to B., if the latter would make him a monument. When the monument was completed, A. declined to take it and refused to convey the land, and B. sued for the work done on the monument. Could he recover? No. Recovery in such a case is based solelyupon the unjust en- richment of the defendant, and here, though the plaintiff has been at an expense, the defendant has not been enriched. Dowling v. McKenney, 124 Mass. 478. 2. PERFORMANCE IMPOSSIBLE. 14. A. paid freight, in advance, for carrying his goods to a certain port. The ship was lost at sea, and A. sues for a return- of the freight paid. Would he succeed? Yes. The fact that the performance of the contract is impos- sible does not give the defendant the right to retain the benefits received, but to which he was only entitled upon the safe deliver}' of the goods. Griggs v. Austin, 3 Pick. 20. The English rule, how- ever, is contra. Byrne v. Schiller, L. R. 6 Ex. 319. 15. A. paid $100 for a proposed patent which B. was about to take out. B. died before the patent could be perfected. Can A. recover the money paid? Yes. The estate would be unjustly enriched, if allowed to keep money for which no equivalent had been rendered. Knowles v. Bovill, 22 Law Times Rep. 70, 3. bEFENDANT RELYING ON ILLEGALITY OF CONTRACT. 16. A. delivered to B. $500 with which to make a bet. B. kept the money himself, and A. sues for its return. Can he recover? No. Where both parties are engaged in an illegal transaction, the law will not help either out of any loss that may arise. Morgan v. Graff, 5 Den. 364;*Kcener on Quasi-Contracts, 2G8. 352 QUESTIONS AND ANSWERS. Where a transaction takes place on Sunday, contrary to a statute, the same result is reached. Thompson v. Williams, 58 N". II. Ii.48. 17. .4. loaned money io the B. Company, contrary to the statute under which the company was incorporated. He now sues for the payment of the loan. What relief, if any, is he entitled to? He is entitled to recover the amount by which the company is actually the richer, for receiving A.'s money. There is no public policy here, as in the cases above, which keeps the court from acting; but on the other hand, A. could not recover on the contract, as the statute would be a perfect defense. The recovery must, therefore, be in quasi-contract for the amount of the enrichment only, and if the property for which the loaned money has been expended has depreciated in value, A. must suffer the loss. In re Cork, etc., Ey. Co., L.' B. 4 Ch. App. 748. IS. When are parties not "in pari delicto" so as to bar a plaintiff, in spite of the fact that a statute has been violated? 1. When the statute was' enacted for the benefit of a class of persons to which the plaintiff belongs. Smith v. Bromley, 2 Doug. 696. 2. Where the statute imposes a penalty for its violation upon the defendant only. Smart v. White, 73 Me.. 332; Tracy v. Tal- mage, 14 N. Y. 162. 3. When the illegality depends upon facts known to the defend- ant, but. unknown to the plaintiff. Louisiana v. Wood, 102 U. S. 294. 4. FAILURE TO PERFORM WILFUL OR WITHOUT EXCUSE. 19. A. gave B. $5 ,,000 on B/s promise to deliver certain goods. B. failed to deliver, and A. sues for the return of the money, as the goods have greatly depreciated. Can he recover? Yes. In spite of the fact that A. here has a perfectly good cause of action on the contract, the courts hold that he may, at his elec- tion, sue in quasi- contract, for money had and received. Nash v. Towne, 5 Wall. (U. S.) 689, The rule of allowing a plaintiff to sue in gi/asi-contract, when he has n good cause of action outside of equitable grounds, upon the contract itself, was started in Dutch v. Warren, 1 Str. 406, and is now generally fixed law. On principle, however; the rule is a bad one, and allows the plaintiff to sue for the breach of the contract when its performance would have been for his benefit, and to choose quasi-contrsict when a rptrrn of the money paid is more advantageous. Performance of the contract was the only thing originally considered by the parties, and the plaintiff should be limited to recovering damngos for the nonper- formance, reserving the principles of . property, valued at $500. When would the transaction be a pledge and when a sale? The test applied in these cases is this: If the debt, on account of which the transfer is made, is not satisfied by the delivery, the transaction is a pledge or mortgage; if it is extinguished, it is a sale. Benjamin on Sales (6th Am. ed.), p. 9. Again, suppose A. delivers property to B., who pays A. $100, and at the same time A. reserves the right to reclaim the goods on payment of a fixed price. If. B. can compel the payment the transaction will be held a loan or pledge of the goods, especially if the fixed price is the same amount paid on delivery. If it is optional with A. whether or not he will pay the price and reclaim ihe goods, the transaction is a sale and title passes, the vendor holding only a right to repurchase which he will lose if he does not exercise it in the time limited. Benjamin on Sales (6th Am. ed.), p. 7. C. FROM CONSIGNMENT. 8. A. consigns goods to B. to be sold by him at such prices as he (B.) may fix,, but A. to receive the invoice price. What is the transaction? Where the consignee fixes the terms and is liable for a fixed price, the transaction is. a sale. Braunn v. Keally, 146 Penn. St. 519. Where, however, the consignor regulates the price and terms of s;i!" the consignee is an agent and the contract one of bailment merely. Nutter v. Wheeler, 2 Low. 346. III. THE PASSING OF TITLE. 9. In a sale of goods, ichen does the title pass? The title passes as soon as the contract is concluded by which the parties intend to give and acquire title. And this is the case regardless of the fact that the goods may still be in the hands of the seller, or are unpaid for. Tome v. Dubois, 6 Wall. (U. S.) 548; W r ebber v. Davis, 44 Me. 147. In deciding whether or not the title has passed by the contract 1he intention of the parties is the first and only consideration. Lester v. East, 49 Ind. 588; Cook v. Van Home, 76 Wis. 520. The question of when the title passes is one of the utmost import- ance. When property is destroyed which has been the subject of a contract of sale, the settling of the question of whether or not title has passed determines upon whom the loss must, fall, and the set- tlement of the same question often determines also the rights of creditors or of a subsequent purchaser from one of the parties. Lingham v. Eggleston, 27 Mich. 324; Bicker v. Cross, 5 N. H. 570. 364 QUESTIONS AND ANSWERS. A distinction must always be noted between cases where A. sells- to B., and cases in which he only agrees to sell. In the latter.. B. is not the loser if the goods are lost; and he has only a right of action for damages if the contract is broken. Zwisler v. Storts, 30 Mo. App. 163. IV. RULES FOB CONSTRUING INTENTION AS TO THE PASSING or TITLE. 10. What are the rules for determining when title passes, in cases where the intention of the parties is not distinctly .ex- pressed ? In contracts for the sale of property the parties often fail to express their intention as to when title shall pass, or express it too imperfectly to allow of enforcement. In such cases there are cer- tain well-recognized rules of construction which are followed to determine when the title passes. a. Sale of Specific Chattel .Unconditionally. Where the subject of the contract is agreed upon -and is ready for immediate delivery, the law presumes an immediate passing of title. This rule is never questioned where the price has been paid or where credit is expressly given. In Martindale v. Smith, 1 Q. B. 395, Lord Denman said: " The sale of a specific chattel on credit,. though that credit may be limited to a definite period, transfers the property in the goods to the vendee, giving the vendor a right of action for the price, and a lien upon the goods, if they remain in his possession, till that price be paid. But that default of pay- ment does not rescind the contract." It is held in many jurisdic- tions, that where the sale is for cash, payment is a condition prpce- dent to a passing of title. Hammett v. Linneman, 48 X. Y. b99. Massachusetts, Minnesota, Vermont, Michigan, Texas and Arkan- sas are among the States holding similarly. The better view, how- ever, seems to be that held by the English courts, and by some of the States, that in such a case title passes at once, reserving to the- seller, however, a lien upon the goods for the purchase price. By this doctrine the seller is secured as to the price, but the risk of loss is placed upon the buyer, who is the party in default. Magee v. Billingsley, 3 Ala. 679. This view is favored by the courts .of Maine, Xorth Carolina, Maryland and Xew Jersey. But in all jurisdictions holding that payment is a condition pre- cedent, the jury may find that the condition is waived, if the seller makes a complete deliver}', without expressly reserving title. Far- low v. Ellis, 15 Gray (Mass.), 229; Parker v.' Baxter, 86 N. Y. 586. b. Sale of Specific Chattel Conditionally. "Where, by the agreement, anything remains .to be done by the seller to put the goods into a deliverable condition, title will not pass until such work has been done. Thus, the testing of a ma- SALES. 365 chine, if agreed upon, would be a condition precedent to the pass- ing of the title; and in general, where the price depends iipon the quantity or quality of the goods, the weighing, measuring or testing of them are conditions precedent to the passing of the title. Thus, as in the rule above, the law throws upon the party in default the risk of the loss of the goods, so long as he is in default. Foster v. Eopes, 111 Mass. 10; Locke v. Priestly, etc., Co., 71 Mich. 263, 266. c. Where Chattels are not Specified. 1. GENERALLY. Where the subject of the contract is not specified, but consists, e. g., of goods to be manufactured or goods not forming a specific lot, .title does not pass until there is an appropriation of them to the contract. Courtright v. Leonard, 11 Iowa, 34; Benjamin on Sales (6th Am. ed.), 310. 2. PART OF A UNIFORM MASS. Where, however, the contract is for the sale of a portion of a uni- form mass, as 100 barrels of flour from a total of 500 barrels, it has teen held by some courts that no appropriation is necessary to pass title. Kimberly v. Patchin, 19 X. Y. 330, is the leading American case favoring this view. And the same view is held in Virginia: Pleasants v. Pendleton, 6 Rand. 473; in Florida: Watts v. Hendry, 13 Fla. 523; in Kansas: Kingman v. Holmquist, 36 Kan. 735; and in Michigan: Wagar v. Detroit, etc., R. R. Co., 79' Mich. 648; Mer- chants, etc., Bank v. Hibbard, 48 id. 118. But this view is not good on principle and is contrary to the great mass of authority, an appropriation being held necessary in such a case in almost all of the jurisdictions Ferguson v. Northern Bank, 14 Bush (Ky.), 555, and authorities cited. In Blackburn on Sales, p. 20, the learned author says: " Until the parties are agreed as to the specific identical goods, the contract can be no more than a contract to supply goods answering a particular description; and since the vendor will fulfill his part of the contract by furnishing any parcel of goods answering that description, it is clear that there -can be no intention to transfer the property in any particular lot of goods more than another, until each has ascertained which are the very goods sold." An apparent exception to this rule exists .in the case of grain in elevators. The depositor of 1,000 bushels may in such a case sell that amount and give a good title to it without separating it from the common mass. This rule is explained by the understood custom of the trade to sell grain in that way, which custom raises a presumption of the intention of the parties to pass a title in com- mon, whereas the ordinary presumption is that the parties intend to pass title in scrcraltv, for which separation and an appropriation is necessary. Tiedeman on Sales, 88: Gushing v. Breed, 14 Allen (Mass.), '380; s. c., 92 Am. Dec. 777: Merchants, etc., Bank v. Hibbard, 48 Mich. 118. 3GG QUESTIONS AND ANSWERS. 3. SUBSEQUENT APPROPRIATION. Where the goods forming the subject of the contract are not specified, there may yet be a later appropriation made with the con- sent of the buyer, which supplies the only element lacking to com- plete the sale. Where A. orders B. to ship " 1,000 bushels of wheat," there is no sale, but B. has implied authority to ap- propriate grain of the quality ordered, and when he makes such an appropriation by delivering the grain to the carrier, the sale be- comes complete and title passes. But to make a delivery to a carrier such an appropriation as to pass the title and throw the risk of loss upon the buyer, the seller must have parted with control over the goods. Until he does so he may change his mind. Eced v. Phila., etc., R. R. Co., 3 Houst. (Del.) 176; Robinson v. Pogue> 86 Ala. 261. In Aldridge v. Johnson, 7 E. & B. 885, a leading case on the point of subsequent appropriation, there was a contract for the purchase of 100 quarters of bartey out of bulk in a granary. The buyer agreed to send his own bags, which were to be filled and taken to the station. The seller filled part of the bags and then, in anticipation of bankruptcy, emptied them again into the bulk. The court held that the filling of the bags was an appropriation which passed the title. Campbell, Ch. J., said: " As soon as each sack was filled with barley, eo instanti, the property in the barley in the sacks vested in the plaintiff." There is also a sufficient appropriation, where, in the execution of a contract, A. consigns goods to B., or where A. delivers goods to a warehouseman, under the agreement, express or implied, that he shall hold the goods as bailee for the buyer. The St. Joze Indiano, 1 Wheat. (U. S.) 208; Hunter v. Wright, 12 Allen (Mass.), 548. It must be remembered, however, that an appropriation is not made when the seller merely expresses his intention to select cer- tain goods, no matter how definite his intention may be. Thus, where A. had agreed to sell a boat-load of coal, and to fill the boat, it was held, that title did not pass until the boat was com- pletely full. Hayes v. Pittsburg, etc., Co., 33 Fed. Rep. 552. The seller must exercise the power of appropriation in accord- anoe with the terms of the contract. The title will not pass, if he sends a larger quantity of goods than ordered, or a smaller quantity, or goods of a different quality. In such cases there is no consent, by the buyer, to the appropriation. In Cunliff v. Harrison, 6 Exch. 903, A. ordered ten hogsheads of claret and B. sent fifteen.. A. refused to keep any of the hogs- heads, and it was held that the action for goods sold and delivered would not lie, as no specific hogsheads had been appropriated ac- cording to the contract and so no property had passed. 4. GOODS TO BE MANUFACTURED. Where the goods are' to be manufactured upon the order of the buyer, the same principles apply, and the title does not pass until SALES. 3G7 the goods are finished and appropriated to the contract. Goddard v. Binney, 115 Mass. 450; Moody v. Brown, 34 Me. 107. The rule is not altered by a provision in the contract for the payment of the price by installments, at various stages of the work. Wollensak v. Briges, 119 111. 453; Wright v. Tetlow, 99 Mass. 397; Andrews v. Durant, 11 N. Y. 35; s. c., 62 Am. Dec. 55. But see Sandford v. Wiggins Ferry Co., 27 Ind. 522, which, contrary to the other States, follows the rule laid down by the English courts, that where a vessel is being built and paid for in installments at cer- tain stages of the work, the title to the part- built passes upon the payment of each installment. But the soundness of this rule is seriously questioned by the English courts themselves. Clarke v. Spence, 4 A. & E. 448. And the rule also remains the same, even when the entire price is prepaid, or where the buyer superintends the work. Halterline v. Rice, 62 Barb. (N, Y.) 593. A few of the States hold that, where an appropriation is made by the seller, a subsequent acceptance of the manufactured article is necessary by the buyer before title passes. Moody v. Brown, 34 Me. 107; s. c., 56 Am. Dec. 640; Eider v. Kelley, 32 Vt. 268; s. c., 76 Am. Dec. 176. But principle arid the weight of authority are against this view. If the goods are made in accordance with the terms of the contract for their manufacture, no other assent is necessary to the appropriation of the goods to the contract, and title passes at once upon that appropriation. Bookwalter v. Clark, 11 Biss. (U. S.) 126; Higgins v. Murray, 73 N. Y.. 253. d. Beservation of Jus Disponendi. It is to be constantly kept in mind that all of the above rules are merely rules of construction, as to the intention of the parties regarding the passing of title, and are of application only when that intention is expressed solely by the acts or circumstances referred to. As has been stated before, where the parties, by their contract or their actions, have expressed their intention unequivo- cally as to when title shall pass, these rules have no application whatever. If, for instance, the seller ships goods and takes a bill of lading, making the goods deliverable to himself, no appropriation of the goods to the contract will pass the title to the buyer. The bill of lading rebuts any possible presumption as to the passing of the title, and shows that the seller intended to retain the jus disponendi of the goods. So, also, where the seller draws a bill of exchange on the buyer to be paid or accepted before the bill of lading is to be delivered, the seller's intention to keep control of the goods is equally clear, and no inferences can be drawn against it. Daws v. Nat. Exch. Bank, 91 U. S. 618; Nat. Bank v. Mer- chants' Nat. Bank, id. 92. But if the seller sends the bill of lading to the buyer, and does not attach to it the bill of exchange, the title will pass, though the bill is not honored. Ex parte Banner, 2 Ch. Div. 278. 368 QUESTIONS AND ANSWERS. V. PLACE WHERE SALE TAKES PLACE. 11. A State statute forbids the sale of liquors within the State. A salesman for a New York house takes an order in that State and the liquors are sent from New York C. 0. D. Has the statute been violated? No. The sale, i. e. } the transfer of title, takes place, as shown above, at the place where the goods are shipped, and thus appropri- ated to the contract. The terms C. 0. D. do not prevent the title from passing, but simply give the seller a right to withhold delivery until the purchase money is paid. Commonwealth v. Fleming, 130 Penn. St. 138- State v. Hughes, 22 W. Va. 757; Tegler v. Shipman, 33 Iowa, 194. The State of Vermont, almost alone, has held the contrary view, viz.: that title passes when the goods are delivered by the carrier to the consignee, and that the sale is, therefore, a violation of the statute. State v. O'Neil, 58 Vt. 160. In this same case, 144 U. S. 333, the Supreme Court held that the place where the sale took place was not a Federal question, and that the 'ruling of the Ver- mont court could not be reviewed, but the three dissenting justices held, that the sale took place where the liquors were separated and shipped. VI. PERFORMANCE OF CONTRACT. a. Delivery. 1. THE PLACE. 12. A. sells two parcels of goods to B., and notifies him that they are ready to be taken away. B. does not come for them and A. brings an action for goods bargained and sold to recover the price of one parcel, and sues for goods sold and delivered as to the other parcel. B. defends both actions by pleading that A. has not delivered the goods. How should the cases be decided? The law, in the absence of express stipulation, does not require the seller to make an actual delivery of the goods, but simply to place the goods within the buyer's power, so that he may at once remove them. A., therefore, had made a sufficient delivery to sus- tain an action for goods bargained and sold, although the goods had not left his possession. Smith v. Wheeler, 7 Oreg. 49; Benjamin on Sales (6th Am. ed.), 1018. On the same principle, where the contract is silent upon the sub- ject, the place where the goods are at the disposal of the buyer is where they are when sold, " unless some other place is required by the nature of the article, or by the usage of trade, or the previous course of dealing between the parties, or is to be. inferred from the circumstances of the case." Hatch v. Standard Oil Co.-, 100 U. S. 134; Benjamin on Sales (6th Am. ed.), 1022. But to sustain an action for goods sold and delivered, an actual delivery is necessary; and in the second action, therefore, B/s de- SALES. 369 fense would be good. Atwood v. Lucas, 53 Me. 508; s. c., 89 Am. Dec. 713. Where the seller is required to send the goods to the buyer, delivery to a carrier is equivalent to delivery to the buyer himself, and passes title. The carrier is the agent for the buyer for the transportation. Benjamin on Sales (6th Am. ed.), 490, 491, 1040. The goods, however, must be forwarded in the usual way sup- posed to. be in the contemplation of the parties. Comstock v. Affoelter, 50 Mo. 411. And the seller must put the goods in proper condition for transportation, and have a proper bill of lading is- sued, etc. Finn v. Clark, 12 Allen (Mass.), 522; Benjamin on Sales (6th Am. ed.), 1029. He must also follow shipping direc- tions explicitly, where there are any, or he will be liable for any loss which may occur. Wheelhouse v. Parr, 141 Mass. 593; Benja- min on Sales (6th Am. ed.), p. 912 b. And the buyer must be given notice of the time and place of shipment. Bradford v. Mar- bury, 12 Ala. 520. 2. TIME OF DELIVERY. 13. By the contract of sale A. is to call for the goo'ds sold within ten days. He does not caV for them within that time, and when he does call for them later, delivery is refused. What remedy has he ? He has none. Where the time is fixed by the contract, it con- trols, and A. having failed to call for the goods within the time required by the contract, cannot compel delivery later. Blossom v. Shotter, 66 Hun (X. Y.), 48; aff'd, 128 N. Y. 679. So also where the seller fails to make delivery within the specified time, the buyer need not accept the goods, if offered at a later time. Cleveland Boiling Mill Co. v. Ehodes, 121 U. S. 255. In equity, however, time is not always deemed to be of the es- sence of the contract, unless the parties have so treated it or it follows necessarily from the circumstances of the contract. Carter v. Phillips, 144 Mass. 100. Even where one tender of th^goods has been refused for good reason, if the time for delivery has not expired the seller may still tender another deliver}-, which must be accepted, if good. Borrowman v. Free, 4 Q. B. Div. 500. The time of delivery may be postponed at the verbal request of either party, but in such a case either buyer or seller may still insist upon the performance of the contract at any time, unless the agree- ment of postponement is a new contract reduced to writing, so as to satisfy the Statute of Frauds. Hickman v. Haynes, L. R. 10 C. P. 598; Benjamin on Sales (6th Am. ed.), .216. * But if the agreement for the performance of the contract at a different time is made after the time for performance has passed, a new consideration is necessary. Hill v. Blake, 48 N". Y. Super. Ct. 253; aff'd, 97 K Y. 216. 24 370 QUESTIONS AND ANSWERS. 3. EIGHT TO INSPECT. 14. A. notifies B.. that goods sold to him are ready for delivery, but when B. seetct to inspect them he is not allowed to open the cases. He then refuses to accept delivery. Has he a good de- fense to an action for goods bargained and sold? Yes. The seller must give the buyer an opportunity to examine the goods to ascertain that they are in accordance with the terms of the contract, and without such an opportunity the delivery is not valid. Isherwood v. Whitmore, 11 M. & W. 347; Erwin v. Harris, 87 Ga. 333; Benjamin on Sales (6th Am. ed.), -1042, p. 912 c. 4. DELIVEEY BY INSTALLMENTS. . 15. A. contracts for the sale of 5,000 tons of rails, agreeing to- ship 1,000 tons per month. He ships but 400 tons in the first- month, and 800 tons in the second. Must the buyer go on with the contract ? No. Where the contract of sale is entire, delivery to be made by installments, a failure to deliver (or accept) a single installment gives the injured party a right to rescind the entire contract, and sue for the damages of the breach. Norrington v. Wright, 115 TL S. 188, and cases there discussed. But where the contract is not entire, but consists of several independent agreements, a breach of one gives no right to rescind. Johnson v. Allen, 78 Ala. 387; s. c., 56 Am. Rep. 34. 5. CONSTRUCTIVE DELIVERY. 16. ^. contracts to sell certain bulky goods to B. t and as a, delivery of them delivers the key of the warehouse where they are stored. B. objects to the form of delivery. Is his objection- good? No. Where goods cannot well be delivered manually a con- structive deliverv will suffice. Bfcrd Ellenborough says in Chaplin v. Rogers, 1 East, 192: " Where goods are ponderous and incapable of being handed over from one to another, there need not be an actual deliv- ery, but it may be done by that which is tantamount, such as the delivery of the key of a warehouse in which the goods are lodged, or by the delivery of other indicia of property." See also Benjamin on Sales (6th Am. ed.), 1043, 1044. The act relied upon as a constructive delivery should, however, be in- dicative of a purpose to pass the property absolutely to the buyer. Barrett v. Turner, 2 Neb. 172. Thus, there is good constructive deTivery in the ease of a transfer of a warehouse receipt; Davis v. Russell, 52 Cal. 611; or of a bill of sale; Whipple v. Thayer, 16 SALES. 371 Pick. (Mass.) 25; or of a bill of lading for goods in transit. Benja- min on Sales (6th Am. ed.), 1044. So, also, where cattle are roaming at large, collecting them and branding with buyer's name is held sufficient delivery. Walden v. Murdock, 23 Cal. 541; s. c., 83 Am. Dec. 135. b. Acceptance. 17. A. ships B. certain goods, and B. sends word that he will not accept the goods as they were not shipped within the time agreed. He later writes, complaining of the amount of freight charged, and saying that he will do the best he can to sell the goods. Have the goods been accepted? Acceptance is more than a mere receipt of the goods. It includes a receipt in accordance with the terms of the contract, and with an intention to retain the goods. If the goods are not tendered in accordance with the terms of the contract, the buyer need not re- turn them, and is protected if he simply notifies the seller of his nonacceptarice, and that the goods are held at the seller's risk. Wartman v. Breed, 117 Mass. 18; Benjamin on Sales (6th Am. ed.), p. 912 d. But if the conduct of the buyer is such as to show an ac- ceptance and an intention to retain the goods, he is bound. In the case put, the second letter would be a sufficient acceptance and would be a waiver of all former objections. Hayner v. Sherrer, 2 111. App. 536; Benjamin on Sales (6th Am. ed.), 1051. So also a buyer is bound, if he does not exercise his right to re- ject the goods within a reasonable time; Hirshorn v. Stewart, 49 Iowa, 418; Treadwell v. Reynolds, 39 Conn. 31; or if he does any act in connection with the goods which he would only be entitled to do as owner. Brown v. Foster, 108 N. Y. 387. In such cases, the .buyer is held to have waived any objections which he may have had a right to make. Even when goods are sent without oeing ordered, the party to whom they are sent may render himself liable for the price of the goods, by exercising the rights of ownership over them. Bartholo- mae v. Paull, 18 W. Va. 771; Schouler on Personal Property (2d ed.), 407. Acceptance may, however, be conditional upon some further act to be done by the seller, in which case the buyer is not liable for the goods until the condition has been performed. Belt v. Stetson, 26 Minn. 411. 18. A. orders certain cards, subject to his acceptance of a proof. Proof is submitted and approved and the cards are then delivered with a material misprint which had been overlooked by A. A. refuses to accept the cards. Has the printer any remedy? Yes. He can recover the contract price for the cards. Accept- ance once made is conclusive and binding upon the purchaser. 372 QUESTIONS AXD ANSWERS. Giles Lithographic, etc., Co. v. Chase, 149 Mass. 459. And a buyer not only waives any objection as to the quality of the goods by acceptance, but he also waives objection as to quantity, or that the goods were not delivered within the time required. Story on Sales (4th ed.), 405; Benjamin on Sales (6th Am. ed.), 1051, note; Baldwin v. Farnsworth, 10 Me. 414; s. c., 25 Am. Dec. 252. The buyer may, however, show a qualified acceptance and a reser- vation of a right to claim damages for delay. Bock v. Healy, 8 Daly (N. Y.), 156; Baldwin v. Farnsworth, 10 Me. 414. But" see Adams v. Helm, 55 Mo. 468 (contra). 19. After accepting goods, A. finds that there has been a breach of warranty in a certain particular. Under ivhat circumstances, if any, can he obtain redress for such a breach? The acceptance of goods is not a waiver of a. right to sue for a breach of warranty, unless the breach was manifest at the time the goods were received. Except under such circumstances A. could recover the injury suffered in the above case. Clements v. Smith, 9 Gill (Md.), 156; Bagley v. Cleveland, etc., Co., 21 Fed. Rep. 164. 20. A. sells certain goods to B. U'ithout fixing any terms for payment. A. refuses to deliver without a cash payment, and B. sues for nondelivery. Can he recover? No. " Where no time is agreed on for payment, it is understood to be a cash sale, and the payment and the delivery are immediate concurrent acts, and the vendor may refuse to deliver without pay- ment, and if the payment be not immediately made the contract becomes void." 2 Kent's Com. (13th ed.) *497. Where, however, credit is to be given by the contract, the buyer has a right to the possession of the goods at once, and the seller has no right of action until the time of credit has expired, and an agreement to pay before the expiration of the time of credit is void for want of consideration. Heritage v. Lawrence, 2 F. & F. 532. If the seller makes delivery without requiring payment, credit will be implied, and the buyer has a reasonable time after a demand, for making payment. Anstedt v. Sutter, 30 111. 164. 21. A. sends goods to B., with a request to " remit as soon as received/' B. sends the money by mail nnd it is never received. A. sues for the price of the goods. Can he recover? The purchaser is discharged, if he makes payment as directed by the seller, and it is held that in such a case as the above, the language of A. would, under ordinarv circumstances, authorize B. to send the money by mail. When such a course is au- thorized, either expressly or by a course of dealing, the buyer SALES. . 373 is discharged when he has deposited the money in the mail. From that time the money is at the risk of the seller. Gurney v. Howe, 9 Gray (Mass.), 404; Benjamin on Sales (4th Am. ed.), 710. VII. AVOIDANCE OF THE CONTRACT. 22. Upon what grounds may a contract of sale be avoided? Upon four grounds: a. Mistake. b. Failure of consideration. c. Fraud. d. Illegality. a. Contracts of sale, like all other contracts, can only be effected, by mutual assent; and where, through some mistake of fact, each was assenting to a different proposition, there is no binding con- tract. Raffles v. Wichelhaus, 33 L. J. Exch. 160; Stoddard v. Ham, 129 Mass. 383. See also Contracts, Ques. 3, 9. b. Where a note is given in payment of goods and is due before the goods are to be delivered, if it is not paid at maturity the goods need not be delivered. The seller, can refuse to deliver the goods and avoid the contract on the ground of failure of con- sideration. Bruce v. Burr, 5 Daly (N. Y.), 510. c. A contract of sale may be rescinded on the ground of fraud, where the plaintiff can show (1) that the alleged representations were made; (2) that at the time they were made they were false, and the purchaser knew them to be so; (3) that they were such as would deceive a prudent man; (4) that they were believed by- the sel- ler, and induced him to part with his property. Gregory v. Schoe- well, 55 Ind. 101. d. The illegality of a contract is also a good ground for avoid- ing- it. Thus, in the States where Sunday contracts are held illegal, actions based upon such contracts cannot be maintained in a court of law or equity, either to enforce the obligation or to secure its fruits in favor of either party. Myers v. Meinrath, 101 Mass. 366. VIII. BREACH OF THE CONTRACT. a. By the Seller. 1. GENERALLY. 23. A. agrees to sell B. certain goods, but fails to transfer title to B., or to deliver the goods. The value of, the goods has in- creased, and B. sues for the possession of the goods. Under what circumstances can he obtain them? Under no circumstances. Where title has not passed, the pur- chaser's only right of action is for damages for a failure to deliver the goods. 'Boutell v. Warne. 62 Mo. 350. For the measure of damages under such circumstances, see Damages, Ques. 10-13. 374 QUESTIONS AND ANSWERS. Where title lias passed, the buyer may sue for damages for non- delivery or may maintain trover; and in some cases, where tiie subject of the sale has a peculiar value and cannot be replaced in the general market, the buyer may even enforce specific perform- ance. Benjamin on Sales (6th Am. ed.), 1340; Bispham's Eq. (5th ed.) 365; Adams v. Messenger, 147 Mass. 185. See Equity, Ques. 19. 2. BREACH OF WARRANTY. 24. What is the meaning of a warranty in the law of sales ? The word "warranty," as used in the law of sales, means a collateral agreement surviving the passing of the title, that the goods shall be of a special quality. A warranty does not prevent the passing of the title, and a breach of it gives the buyer a right of action after the title has so passed. In contracts the word has a widely different meaning, not signify- ing a collateral agreement, but a part of the contract, and a con- dition of it; but in sales the word should be limited to the above meaning. Hey worth v. Hutchinson, L. R. 2 Q. B. 447. 25. A. sells B. certain specific goods, with an express warranty os to their good condition. Their condition proves not to be as warranted, and B. refuses to pay for them and offers to return them. A. refuses to take them back and sues for the contract price. Can B. defeat the action upon proof of his offer to re- turn (he goods? What effect will be given to the breach of war- ranty I ' By the rule, as fixed in most jurisdictions, where the title has passed to B., A. would not be forced to take the goods back. A ale with a warranty is not a sale upon a condition precedent with a right to return the goods if the warranty is broken. The war- ranty is merely a collateral agreement, a breach of which gives the other party the right to recover in damages. Street v. Blay, 2 B. & Ad. 456; Hey worth v. Hutchinson, L. E. 2 Q. B. 447. B.'s offer to return the goods would not, therefore, be a good defense, in most jurisdictions. It is not to be taken for granted, however, that in every case of a warranty there is no chance to return the goods, even though the goods are specific. The fact that they are specific only raises a pre- sumption that the title does pass and the passing of the title is the test. Thus, in criticising Heyworth v. Hutchinson. supra, Benjamin holds that the goods were not specific, and that title did not pass, and on that ground differs with the case. Benjamin on Sales (6th Am. ed.), $ 1345. It is to be noticed, however, that the court- was specifically given the right to construe the facts (p. 450), and they held that the goods were specific. SALES. . 375 In a number of jurisdictions it is held that there is a right to return the goods, and that the warranty is in the nature of a con- dition precedent. Bryant v. Isburgh, 13 Gray, 607. Though not technically correct, this view corresponds with the general ideas of ordinary purchasers, and is perhaps more sensible. A purchaser does not care to have poor goods upon his hands. This view is held in Pennsylvania, Massachusetts, Maine, Wisconsin, Illinois, Iowa. See Benjamin on Sales (6th Am. ed.), 623-634, 1341. The original idea was, that a warranty was an agreement so separate from the contract of sale itself, that the buyer could only obtain redress for a breach ofwarranty by a cross-suit, and could not even set it up in defense, to reduce the damages. This rule, however, has yielded to the influence of common sense and con- venience; and to prevent litigation and expense it has been re- peatedly held in the United States, without statutory provisions, that where a warranty has been broken by fraud or otherwise, such facts may be relied upon in defense to an action upon such con- tracts, to mitigate damages. Withers v. Greene, 9 How. (U. S.) 213, 224-231; Benjamin on Sales (6th Am. ed.) ; 1343. i 26. A. sold cotton to B. " to arrive," and guaranteed it equal to sample. If the quality was inferior a fair allowance was to be made, as fixed by arbitration. Upon arrival the cotton proved to be of an entirely different kind, requiring different machin- ery, and B. refused to accept it, or to submit to arbitration on the question of allowance. Can he be compelled to accept the cotton and sue for breach ? No. An agreement to accept the decision of an arbitrator, fixing an allowance for the difference in the value of the goods., does not apply where there is a difference in kind, but only where the dif- ference is in quality. Azemar v. Casella, L. E. 2 C. P. 431, and ib. 77. 27. A. sold ice to B., without inspection, to be shipped. When it arrived it was found to be poor and not salable. A. suea for the value of the ice. Could he recover? No. In such a contract of sale, there is an implied warranty, as the courts usually express it, that the goods sold will be merchant- able. Perhaps it is as well, however, to say that the meaning of the contract is, that the goods will be fit to put upon the market. Murchie v. Cornell, 155 Mass. 60. 28. A. sold certain goods to B., supposing them to be as rep- resented, and insisting that they should be examined before the purchase. B. only examined part of the goods and then paid for all of them. Later, he discovered that part had been fraudu- 376 QUESTIONS AXD ANSWERS. lently packed, and sues for the damages sustained. What would be his measure of damages/ Suppose A. had been the manu- facturer? Where A. is not the manufacturer and knows no more about the goods than B., the latter would have no right of recovery. \Vheii there is an opportunity of examination and there is no fraud on the part of the seller, there is no warranty, and the rule of caveat cmptor applies. Barnard v. Kellogg, 1U Wall. 383; Benjamin on Sales (6th Am. ed.), 641. It is, however, held in a few States, that a seller, even if not a maker, is liable for defects in goods, though latent, where he is told for exactly what purpose the goods are bought. In such States there is held to be an implied warranty of fitness, and the seller must lose, if the goods are not suitable for the purpose. Benja- min on Sales (6th Am. ed.), 993, and cases cited. If, however, A. were the manufacturer and so knew all about the goods sold, he would be held liable unless the defects were perfectly apparent. In the case of a manufacturer, the law implies a warranty that the goods shall be reasonably fit for the pur- pose for which they are designed, and they must conform with the specifications furnished him by the buyer. Kellogg Bridge Co. v. Hamilton, 110 U. S. 108. But when the defect is perfectly apparent, the buyer by accept- ance consents to the quality of the goods as furnished and waives all right of objection. Gaylord Mfg. Co. v. Allen, 53 N. Y. 515. See also Bounce v. Dow, 64 id. 411. 29. A. sold a slave to B., with express warranty. B., at the time of the sale, has notice that the slave is suffering from hernia. He later sues for damages sustained by reason of the defect. Can he recover? Yes. The theory of a waiver of a warranty by accepting the property sold with knowledge of the defect only applies in the case of an implied warranty. In the case of an express warranty, the buyer may take the goods, if he desires, and rely upon his rights under the warranty to recover damages. Story on Sales (3d ed.), 354, 355; Stucky v. Clyburn, Cheves Law (S. C.), 186; s. c., 34 Am. Dec. 590. The soundness of such a rule is still more evident, when the defect is not discovered until after goods have been used in part. Day v. Pool, 52 K Y. 416. 30. A. was paid for certain iron which he was to make and ship, the iron to be of a specified quality. When B. received the iron he found that the quality was not as ordered, and he refused to accept it and sued for the price. Should he recover? Yes. Title would pass to B. when the goods were delivered to the carrier, only if the goods were of the quality ordered. If SALES. 377 they are of that quality they cannot be returned, but B. could not be forced to accept the goods without inspection, and the right to inspect includes also the right to reject, if the goods are not as contracted for. Pope v. Allis, 115 U. S. 363, 371- 373. If the goods are destroyed en route, it is then a matter of evidence whether or not the goods were of the quality called for by the contract. The principles are settled, that where the sale " is of existing and specific goods, with or without warranty of quality, the title at once passes to the purchaser, and where there is an express war- ranty, it is, if untrue, at once broken, and the vendor becomes liable in damages, but the purchaser cannot for that reason either refuse to accept the goods or return them. If the contract is executory and the goods yet to be manufactured, no title can pass until delivery- or some equivalent act, to which both parties assent, and when offered, the vendee may reject the goods as not answer- ing the bargain, but if the sale was with warranty, he may receive the goods, and there the same consequences attach as in the former case, and among others, the right to compensation, if the warranty is broken." Brigg v. Hilton, 99 N". Y. 517, 529. b. By the Buyer. 31. A. contracts with B. for the sale of certain goods. Before the title has passed, B. refuses to perform the contract. What rights has A. ? Suppose the goods are already in B.'s possession? The buyer's breach of contract may consist either in a refusal to accept the goods or to pay for them. In either case the seller has a right of action for a breach of the contract. Benjamin on Sales (6th Am. ed.), 1117. Where the goods are already in the possession of the buyer, the seller may replevy them, or sue for their conversion. Story on Sales (4th ed.), 440; Salomon v. Hathaway, 126 Mass. 482. In the case of a refusal to accept the goods, no special tender is necessary. James v. Adams, 16 "W. Va. 267. The plaintiff must, however, prove that he was ready and willing to perform his part of the contract. Thus, a mere notice that the seller is ready to deliver is not a sufficient proof of a tender to entitle the seller to recover. It Tvoves only a willingness to deliver and not that he had the goods on hand ready for delivery. Lassen v. Mitchell, 41 111. 101; Xewberry v. Furnival. 46 How. P*. (N. Y.) 139. The measure of damages in such a case is the difference between the agreed price and the market price at the time and place of delivery. " WJiere the contract to deliver goods at a certain price is broken, the proper measure of damages, in general, is the difference between the contract price and the market price at the time when the cor> tract is broken, because the purchaser having the money in his hands may go into the market and buy: So if a contract to accept 318 QUESTIONS AND ANSWERS. and pay for goods is broken, the same rule .may be properly ap- plied, for the seller may take his goods into the market and obtain the current price for them." Tindal, Ch. J., in Barrow v. Arnaud, 8 Q. B. 595, 609. As to what is the market value, see Damages, Ques. 11. 32. A. orders of B. a water wheel of peculiar make and of a kind not kept in stock and not available for general sale. After the wheel is finished and tendered, A. refuses to accept it. What is the measure of damages? It has been held in such a case that the measure of damages is the contract price. In Bookwalter v. Clark, 11 Biss. (U. S.) 126, upon these facts, the court said: " The case does not turn in my judgment upon the question as to whether the title to the goods has passed from plaintiffs to de- fendant. If the plaintiffs have fulfilled their contract and de- livered or tendered delivery, this is all they can do; and if the de- fendants refuse to accept the goods, and being made to order they are presumably not marketable, I think the plaintiffs are entitled to recover as their true measure of damages for nonfulfillment, the contract price of the article, though it be conceded that no title has passed. The title, I think, in such cases should pass upon the rendition of judgment." There are some dicta and a number of cases agreeing with the case cited, but they are not supported by principle or the weight of authority. The measure of damages, where title has not passed, should always be the actual damage suffered from a refusal to ac- cept, regardless of whether the goods are manufactured to order or not. If the goods are not marketable the damages are increased by that fact in accordance with the terms of the rule just stated, but it is only when the title has passed by the contract, that the seller can claim the contract price as such. When the buyer refuses to allow the title to pass, the action is for such refusal, and the damages should be assessed on that basis. It is only in an ac- tion for goods bargained and sold, or for goods sold and delivered, that the contract price is recoverable, and " the principle concisely stated is this, that a count for goods bargained and sold can only be maintained where the property has passed." Tindal, Ch. J., in Elliott !v. Pybus, 10 Bing. 512. See 21 Am. & Eng. Ency. 581, et seq. Where the title has passed to the buyer, even if he has not obtained possession, the seller may pursue his legal remedies against the goods, or sue the buyer upon his refusal to pay. O'Brien v. Jones, 47 N. Y. Super. Ct. 67; Lewis v. Greider, 49 Barb. (K Y.) 60fi; Story on Sales (4th ed.), 436. When, however, the seller has once lost possession, he becomes merely a creditor, and has no right of action against the goods. SALES. 379 The pleadings, where thie title has passed, must be on the com- mon counts for goods bargained and sold or goods sold and deliv- ered, according as the possession of the goods has not or has passed. Benjamin on Sales (6th Am. ed.), 1126, 1127. And the com- plaint must allege a complete performance. Moses v. Banker, 2 ' Sweeny (N. Y.), 267. In defending the action, the buyer may as in any contract set up a breach of a warranty, a defect in the goods, default cm the part of the seller giving a right to rescind, or he may show an inferior quality of the goods in mitigation of damages. " The burden of proof is upon the plaintiff to show that there was a completed sale, and that the goods sold complied with the terms of the con- tract." 21 Am. & Eng. Ency., pp. 592-595, and cases cited. 83. A. contracts with B. for the sale of certain goods. B.. later, refuses to accept the goods, which are still in A/s posses- sion. Has A. a right to sell the goods (I) if title has passed; (2) if title has not passed? If B. refuses to accept the goods without good cause, A. may, after waiting a reasonable time, and after notice to B. of his in- tention, resell the goods and hold B. responsible for the loss sus- tained. O'Brien v. Jones, 47 N. Y. Super. Ct. 67. In that case the court said: " It is common to insert provision for resale in the terms of sale. But I think it may be stated as the settled rule in the United States, though not perhaps in England, that where the price re- mains unpaid, the right to resell exists, even in the absence of any express stipulation, and the purchaser is responsible for any loss that may occur, although he did not consent to the resale." The resale must, however, be conducted in such a manner and at ' such a time and place as will bring the fair market value of the goods. Eeckly v. Tenbroeck, 63 Mo. 563. " The law in such case constitutes the seller, in possession of the goods, the agent of the* buyer for the purpose of such sale. As such agent, he must act in good faith and take proper measures to secure as fair and favorable a sale as possible." Lewis v. Greider, 43 Barb. (N. Y.) 606. It is not absolutely necessary for the seller to give the Buyer notice of the time and place of the resale in addition to the notice of his intention to resell, but it is very desirable to do so in orde-r to show good faith. Lindon v. Eldred, 49 Wis. 305; Holland v lea, 48 Mich. 218. The question of whether or not title has passed dpes not affect the right of the seller to resell. The above rules are applied in both cases indiscriminately, in this country, though it is otherwise in England. 21 Am. & Eng. Ency., p. 596, note 1, and p. 598. 'See Benjamin on Sales C6th Am. ed.), 1125. 380 - QUESTIONS AND ANSWERS. 34. A. sells certain goods to B. and gives him possession be- fore he is paid. Under what circumstances would he have a lien for the price ? He could not have a lien under any circumstances, after he had parted with possession of the goods. " The right of lien depends on the possession, and to maintain it a vendor must have the actual or constructive possession of the goods. After they come into the possession of the buyer according to the terms of the contract, the lien is extinguished, and the goods cannot be reclaimed on the buyer's becoming insolvent." Parks v. Hall, 2 Pick (Mass.) 212. But see Benjamin on Sales (6th Am. ed.), 1135. A lien for the contract price cannot exist, by its very nature,, until title has passed to the buyer. " The existence of a vendor's lien always presupposes that the title to the goods has passed to the vendee, since it would be an incongruous conception that a, vendor might have a lien upon his own goods." Conrad v. Fisher, 37 Mo. App. 382. When title has passed, it exists without any special stipulation to that effect. In a sale of goods where nothing is specified as to delivery or payment, the vendor has a right to retain the goods until payment of the price. He has in all cases a lien, unless he has waived it. Benjamin on Sales (6th Am. ed.), 1130. It must be remembered, however, that such a lien extends only to the contract price, and not to any other claims held against the buyer, even if they arose in connection with the same goods. Tiede- man on Sales, 119. 35. How may a lien for the price of goods be divested? Such a lien may be divested: 1. By payment of the price in full, or tender. Corv v. Barnes (Vt. 1391),' 21 Atl. Eep. 384. Part payment, however, will not operate to release any part of the goods. The lien is upon all of the goods for the entire price. Story on Sales (4th ed.), 282. 2. By waiver on the part of the seller, either express, or im- plied from the giving of credit or the taking of other security. Benjamin on Sales (6th Am. ed.), 1130; Chambers v. Davidson, L. R. 1 P. C. 296. Where, however, the security taken provps worthless, or the buyer becomes insolvent, the lien will revive, if the goods are still in the possession of the seller. Milliken v. Warren, 57 Me. 50. 3. By delivery of the goods. As stated above, the existence of the lien presupposes possession. IX. CONDITIONAL SALES. a. Distinguished from Bailment, Lease, Mortgage and Consignment. 36. Define a conditional sale as distinguished from (1) a bailment; (2) lease; (3) mortgage; and (4) consignment. A conditional sale is a contract, the purpose of which is the passage of title from seller to buyer upon the performing of some SALES. 381 agreed condition, or a contract by which the vendor has a right to rescind upon the failure on the part of the buyer to perform some condition subsequent. Sellers frequently, especially in States where there are- statutes requiring the registration of conditional sales, endeavor to cover up a conditional sale by mis- naming the transaction, in order to deprive buyers of the power of disposing of property so sold, or prevent creditors of the buyers from levying upon them. The courts will, however, look at the real intention of the parties and give the contract its full force. 1. Thus, where A. transfers property to B., and reserves the title solely for the purpose of protecting himself until the pay- ment of the agreed price, the transaction is a sale, though called a bailment. Sumner v. Woods, 67 Ala. 139. In some instances courts have made a distinction between a bail- ment with an option to buy at a fixed price, and a contract of sale reserving title until the price has been paid, holding, in the first case, that property does not pass in favor of purchasers of the bailee, and in the second, that the property may be transferred to batia fide purchasers, and is subject to execution in a suit against the buyer, after it has been delivered. Crist v. Kleber, 79 Penn. St. 290; Rowe v. Sharp, 51 id. 26. See also Bean v. Edge, 84 N. Y. 510. In most jurisdictions, however, both of these transactions are, it would seem rightly, held to be conditional sales. 21 Am. & Eng. Ency.. p. 631, note 1, cases cited. 2. Where a piano, the price of which is $700, is delivered to A. who pays $50 in cash and signs a contract to pay $50 per month, rent, for thirteen months, such an agreement is a sale, not a lease, and the piano may be levied upon by A/s creditors. Murich v. Wright,. 46 111. 487; Lucas v. Campbell, 88 id. 447. In Murich v. Wright (supra), the court said: " It was a mere subterfuge to call this transaction a lease. * * * It was a conditional sale, with a right of rescission on the part of the vendor in case the purchaser should fail in the payment of his installments, a contract legal and valid as between the parties, but made with the risk on the part of the vendor of losing his lien in case the property should be levied upon by creditors of the purchaser while in possession of the latter." It is not, however, a conditional sale, where A. agrees to take, goods for a certain time, and at the end of that time to pay for them, or return them and pay for their use for the period. In such a case there is the necessary element of compensation for the use of the thing let. Herryford' v. Davis, 102 TJ. S. 235. 3. The question of whether a transaction is a mortgage or a conditional sale is practically settled by the real intention of the parties, and if the relation of debtor and creditor never existed between the parties, it is a conditional sale and not a mortgage. Conwny v. Alexander, 7 Cranch (V. S.), 218. Thus, where a conveyance was absolute in form and a separate pnper gave a right to repurchase by a certain day, and where the transaction was not connected with a loan and there was, in fact, 382 QUESTIONS AND ANSWEES. no debt, such a transaction Is a conditional sale, and not a mort- gage. Mitchell v. Wellman, 80 Ala. 16. 4. Upon the same principle, a transfer of goods, which reserves a lien upon the goods for the purchase price, is none the less a con- ditional sale for being called a consignment. b. Conditions to Passage of Title. 37. A. contracts for the sale of certain goods to B. " to arrive" the goods being then at sea. The vessel is lost. Upon whom does the loss of the goods fall ? The loss must fall upon A., as title never passed to B. The question of the performance of a condition precedent in sales is the same as that in other contracts; and where, by the contract, there is a condition precedent to the passage of title, that condition must be fulfilled before the title will pass. Thus, in the above case the; arrival of the goods is a condition precedent to the passing of title,. and the goods must arrive before A. can be relieved of the liability for their loss. Russell v. Nicoll, 3 Wend. (N". Y.) 112; Eogers v. Woodruff, 23 Ohio St. 632. On the same principle, title to the goods will not pass where something remains to be done to the goods. Frost v. Woodruff, 54 111. 155. See also Ques. 7 (2) and (3) (supra). So where the contract calls for delivery, at stated times, of a cer- tain part of the goods of a fixed quality, the buyer may repudiate the entire contract, if the conditions as to delivery are not carried out by the seller. Cleveland Boiling Mill Co. v. Rhodes, 121 U. S. 255; Norrington v. Wright, 115 id. 188. Where, however, the con- tract is separable and not entire, a failure to deliver one install- ment will not be a breach of the condition as to the whole transac- tion. Scott v. Kittanning Coal Co., 89 Penn. St. 237; Blackburn v. Reilly, 47 N. J. Law, 290; s. c., 54 Am. Rep. 159. On the same principle, payment may be the condition precedent. Christian v. Bunker, 38 Tex. 234. And where the contract calls for the delivery of notes in payment or where payment is made by check, the notes or check must be honored before title passes to the buyer, provided that such is the expressed intention of the parties. Watertown, etc., Co. v. Davis, 5 Del. 192, 218; Hirschorn v. Canney, 98 Mass. 149; Cole v. Berry, 42 N. J. 308 at 313. See Benjamin on Sales (16th Am. ed.) p. 27, note 17. If payment is to be made in installments, the last one must be paid. The delivery of the goods at a specified time or place may also be a condition, precedent, the failure to perform which will give the buyer the right to rescind. Jones v. U. S., 96 U. S. 24. Where o-oods are delivered on approval, to be bought if satis- factory, title of course does not pass until the goods are accepted, and until that time they remain at the seller's risk. Pierce v. Coolev, 56 Mich. 552, SALES. 383 38. A. sells a horse to B.,, giving B. a right to return him in two days if he does not answer the description given. After the two days have elapsed, A. brings action for the agreed price, and B. defends, on the ground that the horse did not prove to be as described. Who should have judgment? Judgment must be given for A. Such a contract as above, with, a condition subsequent, passes the title absolutely, subject only to be defeated by the return of the horse. But where the time for the performance of the condition is fixed, the sale becomes absolute when that time has elapsed, and the buyer becomes liable for the price. Moore v. Piercy, 1 Jones (N. Car.), 131. In the above case, or in any other where the buyer acquires a good title subject to be defeated only by the nonperformance of a condition subsequent, a bona fide purchaser who buys before the title is so defeated acquires a perfect title. Dearborn v. Turner, 16 Me. 17; s. c., 33 Am. Dec. 630; McKinney v. Bradlee, 117 Mass. 321. c. Bights of Third Parties. 39. A. sells property to B., conditioned that title shall n'ot pass until the goods are paid for. While B. is in possession of the goods his creditors levy upon them. Can A. protect himself? Yes. In the absence of fraud, such a condition is binding and A. can replevy the goods. Bradshaw v. Warner, 54 Ind. 58, 62; King v. Bates, 57 N. H. 446; Gould v. Ho well, 32 ,111. App. 349; Cole v. Berry, 42 N. J. Law, 308, at 313; Wadley v. Buckingham, 80 Wis. 230. He must act within a reasonable time, however. Marston v. Baldwin, 17 Mass. 606. In many States there are statutes requiring conditional sales to be recorded, and in such jurisdictions, unless the contract, or written evidence of it, is recorded, such a condition as to the vesting of the title is not valid, as against an attaching creditor or a bona fide purchaser, unless he has knowledge of the facts. Such statutes are in force in Arizona: Eev. Stats. (1887), 2030-2038; Connecticut: (1895) 212 (based upon Lee, etc. v. Cram, 63 Conn. 433): Georgia: Code (1895), 2776; Iowa: Code (1897), 2905; Kansas: Laws 1889, chap. 255; Maine: Rev. State., chap. Ill, 5: Minnesota: Gen. Stats. (1894), 4149; Missouri: Rev. Stats. (1889), 1255, 5180; Nebraska: Comp. Stats., chap. 32, 26; North Carolina: Laws 1891, chap. 240, p. 195; New Hampshire: (1896) chap. 140, 23; New Jersey: Gen. Star. (1896), p. 891; New York: Laws 1884, chap. 315, 1; South Carolina: Rev. State. (1893), 2154; see also Talmadge v. Oliver, 14 S. Car. 522; Texas: Rev. Stats. (1895), 2546-2549; Vermont: Stats. (1894), 2290; Virginia: Code (1SS7). 24(52: West Virginia, Code of 1887,' chap. 74, 3, and Wisconsin, Rev. Stats. (1898), 2317. In some States the courts have refused to enforce the rule against bona fide purchasers, even without statutory enactments. Hide, 384 QUESTIONS AND ANSWERS. etc., Bk. v. West, 20 111. App. 61; Vaughn v. Hopson, 10 Bush (Ky.), 337; Bias v. Chickefing; (54 Md. 348; Patchin v. Biggerstoff, 25 Mo. App. 534; Weber v. Diebold, etc., Co. (Colo. 1892), 29 Pac. Kep. 747; Stadtfield v. Huntsman, 92 Penn. St. 53. X. BONA FIDE PURCHASERS. 40. A. purchases a stolen horse at auction in good faith, and sells him to B., who is also ignorant nf the theft, for a valuable consideration. Can the owner hold B. responsible for the value of the horse ? Yes. The general rule is that the buyer, whether bona fide or not, acquires no better title than his vendor had. The rule of caveat emptor applies and casts upon the buyer the risk' of title. Eobinson v. Skipworth, 23 Ind. 311; Fawcett v. Osborn, 32 111. 425; e. c., 83 Am. Dec. 282. So, if the goods are sold under judicial process, if the goods sold belong to another person than the one against whom the execution was levied, or if the property was exempt, or if the proper formali- ties we're not observed, a bona fide purchaser obtains no title. Aren- dale v. Morgan, 5 Sneed (Tenn.), 703; Cooper v. Newman, 45 N. H. 339; Miller v. Thompson, 60 Me. 322. On the same pnnciple a bailee cannot give a good title. Sanders v. Wilson, 19 D. C. 555. Nor can an agent or factor, even if he has authority to sell, give a good title if he exceeds his authority, e. g. : when he sells goods in payment of his own debts. Gray v. Agnew, 95 111. 315. In many jurisdictions, however, Factors' Acts have been passed bv which bona fide purchasers from factors who have been intrusted with the possession of the goods and documents of title, will acquire a good title" if the purchase was made in the regular course of business without notice of the factor's real relation to the goods. There are, however, some exceptions to this rule. A bona fide purchaser for value of negotiable instruments acquires a good title. See Bills and Notes, Ques. 14-16, supra. Again, one who has ob- tained the legal title to property by fraud, which title is voidable by the true owner, can pass to a bona fide purchaser for value a perfect and unassailable title. Carme v. Rauh, 100 Ind. 247; Tiedeman on Sales, 329. Where also a principal holds out his agent as having authority, a bona fide purchaser gets a good title against the owner. Story on Sales (4th ed.), 199. 41. A. buys goods from B., who is a debtor of his, and pays no money, but credits the agreed price on B.'s debt. Can he claim the protection of a bona fide purchaser upon such a trans- action? Xo. The general rule is that a pre-existing debt is not such con- sideration as to make a man a holder for value. In a few jurisdio- SALES. . ' 385 tions, however, a pre-existing debt is good consideration. It is held to be such in Missouri, Illinois, Wisconsin and Maine. 21 Am. & Eng. Ency., p. 575, note, and cases cited. To be a bona fide purchaser " the purchaser must exercise ordinary care and discretion; must give a valuable consideration; and must take the goods in good faith and without notice of the defects in the seller's title." 21 Am. & Eng. Ency., p. 574. Actual notice of the defects in the seller's title is not necessary. If the purchaser has reason to believe from all the circumstances that the transaction is not proper, but makes no attempt to find out the facts, h'e cannot claim to be a purchaser in good faith. Loeb v. Flash, 65 Ala. 526; Green v. Humphrey, 50 Penn. St. 212. See Bills and Notes, Ques. 16. XI. STOPPAGE IN TRANSITU. 42. Who has the right to stop goods in transit, and under what circumstances may the right be exercised? The right of stoppage in transitu belongs only to vendors, or to persons in a position similar to that of vendors. Thus, an agent who was personally paid for the goods shipped, or bought them on his own credit, may stop the goods. Seymour v. Newton, 105 Mass. 27?. A third person, who has advanced the price on behalf of the purchaser and has taken an assignment of the bill of lading, may also stop the goods in transit. A vendor has a right to stop goods only in case of the insolvency of the vendee, while the goods are still in the hands of the carrier, qua carrier, and have not, therefore, come into the actual possession of the vendee. The right thus comes into existence after the vendee has acquired title and right of possession, but before he has actual possession. Such a right is an equitable extension of the vendor's lien, under which he can repossess himself of the goods for his protection. The right is based upon the " reason of justice and equity, that one man's goods shall not be applied to the pay- ment of another man's debts." D'Aquila v. Lambert, 2 Eden, at p. 77; Blum v. Marks, 21 La. Ann. 268; Babcock v. Bonnell, 80 N. Y. 244. The effect of the stoppage in transitu is only such as is required for the vendor's protection, as suggested above. The sale is not thereby rescinded, but the vendor regains his lien upon the goods for the pur- chase price, and is again placed in the same position as if he had never parted with possession. Newhall v. Vargas, 13 Me. 93; s. c., 29 Am. Dec. 489; Patten's Appeal, 45 Penn. St 151. 43. A. sells goods to B. and receives part payment at once. IVhile the goods are in transit, B. becomes insolvent. Has A. ihe right to stop the goods? Yes. A part payment of the purchase price does not deprive the vendor of his right to stop the goods. He still has the right to 25 386 QUESTIONS AND ANSWERS. protect himself as to the balance of the purchase price. Howatt v. Davis, 5 Munf. (Va.) 34; s. c., 7 Am. Dec. 681. So also the right exists, though the vendor has received con- ditional payment, as by bills of exchange, even though he may have negotiated them and they are outstanding umnatured. Benjamin on Sales (6th Am. ed.), 1138-1140. 44. A. ships goods- to B. at Philadelphia. After the goods- have arrived there, A. notifies the railroad not to deliver them to B. Would the carrier be liable in case of a delivery ? Yes. The goods can only be stopped while in transit, and they are held to be in transit until the consignee. has talc en possession of them by some positive act, or so long as the carrier still holds them. as carrier. Blackman v. Pierce, 23 Cal. 509; Chandler v. Fulton, 10 Tex. 2; B. c., 60 Am. Dec. 188. The right to stop, does cease, however, where the carrier " by agreement between himself and the consignee undertakes to hold the goods for the consignee, not as carrier, but as his agent, and the same principle will apply to a warehouseman Or wharfinger." Ex parte Cooper, L. K., 11 Cb... Div. 68, a A.; Hall v. Diamond, 63 N. H. 565. 45. " First " and " second " bills of lading are issued for certain goods. The carrier delivers the goods upon the presenta- tion of the " second " bill of lading,, without knowledge that the holder is not entitled to them, and that the holder of the " first " is the rightful owner. Is the carrier guilty of conversion? No. When the carrier has no notice of another indorsement of a bill of lading he is protected by a delivery to any person holding a good bill of lading, whether it be a " first " or " second," and is not bound, at his peril, to ask for the 'other parts of the bill. Glyn Mills v. East. & West. Ind. Dock Co., 7 App. Cas. 591; Benjamin on Sales (6th Am. ed.), 1284. 46. A. sells goods to B., and sends him a bill of lading en- titling him to the delivery of the goods. B. indorses the bill to C. for value, and, later, becomes insolvent before the goods have ar- rived. Can A. exercise the right of stoppage in transitu? No. In case of the purchase of the goods and a transfer of the bill to a bona fide purchaser for value during the transit, the- right to stop the goods is defeated. Lickbarrow v. Mason, 1 Smith's L. C. (8th ed., 1879), 753. By the common law, as fixed by that lead- ing case, the indorsement, if made by a factor or consignee, was only valid in case of a sale, and the right to stop the goods was not de- feated in case of a pledge, as a factor's authority was held not to extend a right to pledge. But now, by the Factors Acts, uni- formly in force, a pledge by a factor is binding upon the consignor and defeats his right to stop the goods, at least, to the extent of SALES. 387 the money loaned; and by the Bills of Lading Acts, any indorsee of a bill of lading has all rights of action upon the bill in his own name. 1 Smith's L. C. (8th ed. 1879), p. 823; Daniel on Neg. Inst. (4th ed.), 1730, 1751; Benjamin on Sales (6th Am. ed.), 1285. To cut off the vendor's right of stoppage in transitu, however, the transfer of the bill' of lading must, both by common law and statute, be to a bona fide third person. The fact that the third person knows that the vendee has not paid for the goods will not necessarily deprive him of the rights of a bona fide transferee of the bill of lading. Curning v. Brown, 9 East, 506. But he must act without knowledge of facts which would make the transfer of the bill of lading dishonest. Rosenthal v. Dessau, 11 Hun (N. Y.), 49. Thus, to show that the third person was not acting in good faith it may be shown that he knew of the insolvency of the consignee. Loeb v. Teters, 63 Ala. 243; s. c., 35 Am. Rep. 17. In some jurisdictions, it is held that a pre-existing debt is not good consideration for the transfer of a bill of lading so as to cut off the vendor's right to stop the goods. Fee v. Kimball, 45 Me. 172; Chandler v. Fulton, 10 Tex. 2; Lesassier v. Southwestern, 2 Woods C. C. 35. See also Loeb v. Peters, 63 Ala. 243. Of course, where the vendor makes the goods deliverable to himself by the bill of lading, and thus retains the jus disponendi of the goods, he is always protected and does not need to resort to stoppage in transitu. Ogg v. Shuter, 1 C. P. Div. 47. See Ques. 10, d, supra. 47. A., as vendor, consigns goods to B., and sends him the lill of lading. B. indorses the bill to C. to secure an advance and then becomes insolvent. Can A. stop the goods in transitu? The courts give relief in such a case in their efforts to protect an unpaid vendor where they can do so without prejudice" to a bona fide indorsee. \Vhere the goods are pledged, the legal title would remain in the consignee (pledgor), and the stoppage of the goods would be effectual to the extent of entitling the vendor to the goods remain- ing afterthe pledgee had been satisfied to the amountof his advance. But the courts have gone still farther and have held that where the transfer of the bill of lading is absolute in form, and the consignee has no legal title whatever left in the bill of lad- ing or the goods which it represents, still in equity the consignee retains tfie general property, and the right of stoppage remains so far as to entitle the vendor to any surplus pro- ceeds after the indorsee has been satisfied for his advance, and the vendor mav even insist that the indorsee shall, if possible, satisfy bis claim out of other security before resorting to the goods. 388 QUESTIONS AND ANSWEBS. In re Westzinthus, 5 B. & Ad. 817; Spalding v. Eliding, 6 Beav. 376. See also Berndtson v. Strang, L. B., 4 Eq. 486; and Kemp v. Talk, 7 App. Cas. 573. 48. A. consigns goods to B., who, before he has paid for them, sells them to C., and indorses to him the bill of lading. B. then becomes insolvent before C. has paid him for the goods, and A. claims the right, by stopping the goods, to have C. pay him the money which he owes B. Is the claim a good one? No. The right to stop in transitu terminates as soon as the buyer has parted with the title to the goods. The right of the seller is to protect himself by stopping goods belonging at law, or at least in equity, to the buyer, but where the bill of lading has been in- dorsed, and transferred to a bona fide sub-purchaser, for value, the buyer no longer has any interest to which the right of stoppage can attach. Benjamin on Sales (6th Am. ed.), 1287. This question has been discussed by the English courts in Ex parte Goiding Davis, 13 Ch. Div. 628, and Ex parte Falk, 14 id. 446, but the judges were widely divided in their opinions. The former case is probably overruled in effect by the latter, in which the point is certainly established that the absolute transfer of the bill of lading is necessary to terminate the right of stoppage. Ex parte Falk went to the House of Lords, under title of Kemp v. "Falk, L. E. 7 App. Cas. 573, and at p. 582 of that case Lord Black- burn says: " No sale, even if the sale had actually been made with payment, would put an end to the right of stoppage in transitu, unless there were an indorsement of the bill of lading. Why any agreement to sell, unless it was made in such a way as to pass the right of prop- erty in the goods sold, should be supposed to put an end to the equitable right to stop them in transitu, I cannot understand. I am quite clear that it does not." And Lord Selborne, at p. 577, is equally emphatic that the right to stop is terminated when such, a transfer takes place. XII. STATUTE OF FRAUDS. a. In General. [By the common law, previous to 1677, it lay within the power of a jury to find a contract for the sale of goods, regardless of the amount involved or the manner in which the contract was proved. The juries had enormous power, could not be fined, and control of them by a new trial was incomplete. During the Commonwealth many reforms had been planned, and in 1677 one of these was embodied in the statute of 29 Chas. II, chap. 3, known as the Statute of Frauds. By that statute juries were prevented from finding a sale, save under certain circum- stances. In bo far as such causes operated for the enactment of the statute, they are, of course, now nonexistent. In many commercial cen- SALES. 389 ters it is considered disreputable to reply upon the statute, and it is, on the whole, an inconvenience. Its provisions are in full force, however, in England, and a similar statute is in force in probably every State, ex- cept Rhode Island and Texas.* 1 Stimson Am. Stat. Law, 4144, stats, cited. It is probably not inaccurate to say that the Statute of Frauds of every State has been shaped upon the model of the original statute. The different States have different provisions as to the maximum amount of an oral contract which may be enforced, and in the different jurisdictions various rules of construction obtain, but the principle of such legislation is best illustrated by a study of the original statute.] 49. What are the provisions of 29 Chas. II, chap. 3, as to sales? Section 17 of the act dealt with the subject of sales. It enacted as follows: " And be it enacted, that from and after the said four-and- twentieth day of June (A. D. 1677), no contract for the sale of any goods, wares or merchandise, for the price of ten pounds ster- ling, or upwards, shall be allowed to be good, except the buye^hall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made, and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." 50. How is the phrase " Contract for the sale of any goods/' etc., construed? The English courts were years in construing the above phrase, and only in comparatively recent times has the construction been finally determined. Up to 1861 it was an open question as to what contracts were for " work and labor," and so not within the statute, and what contracts were for the sale of goods. The rule was finally settled in Lee v. Griffin, 30 L. J. Q. B. 252; s. c., 1 B. &. S. 272. " That action was brought by a dentist to recover 21 for two sets of artificial teeth, made for a deceased woman of whom the defendant was executor. It was held that the contract was for the =ale of the teeth. Crompton, J., expressed the rule, as follows: "When the contract is such that a chattel is ultimately to be delivered by the plaintiff to the defendant, when it has been sent, then the cause of action is goods sold and delivered." Blackburn, J., said: " If the contract be such that it will result in the sale of a chattel, the proper form of action, if the employer refuses to accept the article, when made, would be for not accepting. * * * If Benvenuto Cellini had contracted to execute a work of * In Texas, where the oil Spanish' law has prevailed, the seventeenth section i of ' th* S-Htutc of Frauds has never been in force. See Rev. Stats. Texas. .9, tit. 4 art 2464. 1 1 Rhode Island that section has not been in force since 1,51. Hobart v. Littlefleld, 13 R.I 341. Q 390 QUESTIONS AND ANSWERS. art for another, much as the value of the skill might exceed that of the materials, the contract would have been, nevertheless, for the sale of a chattel!" This construction of the statute seems obvious to-day, and is most satisfactory. The doctrine of Lee v. Griffin has been followed in Con- necticut, Minnesota, and to a qualified extent in New Hamp- shire. Atwater v. Hough, 29 Conn. 508; s. c., 79 Am. Dec. 229; Brown v. Sanborn, 21 Minn. 402; Prescott v. Locke, 51 N. H. 94. In the last case they hold, that if the services of a particular person are required, then it is a contract for work and labor. In Finney v. Apgar, 31 N". J. Law, 266, and Goddard v. Binney, 115 Mass. 450, the rule of Lee v. Griffin has been rejected. The fact that the contract is executory and calls for future de- livery of the goods does not, in most jurisdictions, take it out of the statute, but there are numerous cases holding that a contract to furnish articles to be manufactured, or prepared in a prescribed manner, is not affected by the Statute of Frauds. See Benjamin on Sales (6th Am. ed.), 94, and cases cited. In^ew York it is held, that an agreement of sale is not within the statute, unless the goods are ih existence at the time. The fact that something remains to be done does not prevent the transaction from being a sale, but the article must be in solid-o, at the time of the contract. ^Cooke v. Millard, 65 1ST. Y. 352. See also Matti- son v. Westcott, 13 Vt. 258, accord; Higgins v. Murray, 73 N. Y. 252. In Massachusetts, there is still another rule, which was finally established by Lamb v. Crafts, 53 Mass. 356. Shaw, Ch. J., said there : " The distinction, we believe, is now well understood. When a person stipulates for the future sale of articles, which he is habit- ually making, and which at the time are not made or finished, it is essentially a contract of 'sale, and not a contract for labor; other- wise when the article is made pursuant to the agreement." See also Goddard v. Binney, 115 Mass. 450, This rule is the one most widely adopted in the United States. Hight v. Eipley, 19 Me. 139; Meincke v. Falk, 55 AVis. 427. b. " Goods, Wares and Merchandise." 51. Are shares of stock, choses in action, crops and growing trees "goods, wares and merchandise," within the provisions of the statute? Stocks. There is force in the argument that the statute should be construed as applying only to such property as was considered under the head of " goods, wares and merchandise " at the time of its enactment, but the courts have generally gone upon the theory that any chattel was included under the head of " goods, wares and SALES. 391 merchandise " and have extended the meaning of that phrase to -cover certain kinds of property not originally specifically intended, on the ground that contracts for the sale of such property are clearly within the spirit of the statute. Most courts, therefore, hold stocks to be within the provisions of the statute. Pray v. Mitchell, 60 Me. 430; Tisdale v. Harris, 20 Pick. (Mass.) 9. See also Somerby v. Buntin, 118 Mass. 279; Mayer v. Childs, 47 Cal. 142. There is some conflict, however, on the point. See Board- man v. Cutter, 128 Mass. 388. And the law of England is well settled, contra. Humble v. Mitchell, 11 Ad. & E. 205. On the same principle as stocks; accounts (Walker v. Supple, 54 Oa. 178), checks (Beers v. Crowell, Dudley (Ga.), 28), bank bills (Gooch v. Holmes, 41 Me. 523, 528), and promissory notes (Pray v. Mitchell, 60 Me. 430, 435), are held to be included in " goods, wares and merchandise." But the words of the statute have never been extended to an incorporeal right such as a franchise. Blake- ney v. Goode, 30 Ohio St. 350. Choses in action. These are generally held to be within the statute. Benjamin on Sales, 111, note 1. In New York the statute expressly adds " things in action," to the phrase. 2 Rev. Stat. 136, 3. So also California, Minnesota and some other States. Crops. In the consideration of contracts for the sale of things growing in the soil, the question presents itself, whether or not the contract transfers any interest in real estate. If it does, the seventeenth section of the act does not apply, but the fourth sec- tion of the act is operative. That section provides: " That no action shall be brought, whereby to charge any person * * * upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them; or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto lawfully authorized." It will be noticed that this section differs from the seventeenth, in that a written memorandum is required in all cases, whereas under the seventeenth section, no memorandum is required, if the value is under 10, or if there has been a part acceptance or an earnest has been given to bind the bargain. A case, therefore, frequently depends entirely upon the question, whether a con- tract is for the sale of " goods, wares and merchandise," or an " in- terest in or concerning land." In the sale of anything that is attached to the soil, Blackburn makes the question of when property is to pass the test, holding that if the tiling is first to be severed from the soil, and then sold, it is an executory contract for the sale of goods, not then existing a c such. But if the property is to pass before severance from the realty, it is a contract of .sale, but not a contract for -the sale of goods. Blackburn on Sales, 9, 10. 392 . QUESTIONS AND ANSWERS. This test, however, though accurate on principle, has been ap- plied by only a few courts in this country. In questions as to the so-called " fructus industrials " i. e., all crops of grain, vegetables, etc., the annual results of culti- vation of the soil, it is almost universally held that these are personal property, and can be sold as such before maturity, no matter how long they need to remain in the earth for the comple- tion of growth. Davis v. McFarlane, 37 Cal. 634; Smith v. Bryan, 5 Md. 141; Benjamin on Sales (6th Am. ed.), 117, note 5, cases cited. Trees. In questions of " fructus naturales" there is considerable authority, that a sale of them in their growing state is not a sale of an " interest in land," unless they axe to continue to be attached to the soil, and to derive benefit from it. Marshall v. Green, 1 C. P. Div. 35; Cain v. McGuire, 13 B. Hon. (Ky.) 340. The juris- dictions in accord are Connecticut, Maryland, Massachusetts. 8 Am. & Eng. Ency. (1st ed.) p. 698, note 4. In other States, however, it is held that all sales of fructus naturales are within the fourth section of the statute, a broad dis- tinction being made between fructus naturales and fructus in- dustriales. The States holding this distinction are Tndiana, Michi- gan, Missouri, New Hampshire, New Jersey, New York, Pennsyl- vania, Vermont and Wisconsin. 8 Am. & Eng. Ency. (1st ed.) p. .700, note 1. c. " Price of Ten Pounds." 52. A. agrees to take all of the produce of a certain piece of land, at a fixed price per bushel. The number of bushels is un- known. Would the contract be within the statute? If, when the total price to be paid became fixed, it exceeded the statutory limit, the contract would be within the statute. The fact that the parties to the contract cannot know whether or not the price will exceed the limit is immaterial. Brown v. Sanborn, 21 Minn. 402. Where different articles are bought at the same time, the statute applies, if the total price exceeds the statutory limit, provided the whole is really one transaction. Jenness v. Wendell, 51 N. II. 63, d. Acceptance and Actual Receipt. 53. Is acceptance, under the statute, an act preceding or fol- lowing the receipt of the goods sold? A buyer may accept goods sold, so as to bring the contract within the statute, either after the delivery, at the time of it, ,or before. Cusack v Robinson, 1 B. & S. "299; Wilcox Co. v. Green, 72 E". Y. 17. But there must, of course, be a complete contract before any acceptance is possible. Proctor v. Jones, 2 Car. & P. 532. SALES. 393 54. What constitutes acceptance, under the statute ? In England, the acceptance under the statute is treated as the mere identification of the goods which are the subject of the contract. Page v. Morgan, 15 Q. B. Div. 228. But the weight of authority in the United States is that acceptance under the statute must " be by some unequivocal act done on the part of the buyer, with the intent to take possession of the goods as owner." Eemick *v. Sand- ford, 120 Mass. 309. A buyer may, however, so act in regard to- the goods as to be estopped to deny his acceptance of the goods, as where the goods are unreasonably detained, or where ownership is asserted by a re- sale of the goods or some similar act. Greene v. Merriam, 28 Vt. 801. Browne on Statute of Frauds, 316 g. 55. Will an acceptance of goods, without a receipt of them, be sufficient, under the statute? No. " This provision is not complied with unless the two things concur: the buyer must accept, and he must actually receive part of the goods; and the contract will not be good unless he does both." Blackburn on Sales (2d ed.), 16; Benjamin on Sales (6th Am. ed.), 139. 56. What constitutes "actual receipt" of goods, under the statute? Before there can be an actual receipt of goods, the seller must have parted with his lien, and the buyer must be possessed of them, so as to cut off the right of stoppage in transitu, and with the in- tention of holding them adversely to the seller. Proctor v. Jones, 2 Car. & P. 532; Stone v. Browning, 68 N. Y. 598; Hinchman v. Lincoln, 124 U. S. 38. Where the goods are bulky or for any reason are not capable of physical delivery, a delivery of a ware- house receipt or other similar document to the buyer will not be a receipt by him, within the statute, until the warehouseman or other bailee of the goods has attorned to the buyer. Williams v. Evans, 39 Mo. 201; King v. Jarman, 35 Ark. 190, 198; s. c., 37 Am. Rep. 11. Of course, as in the case of acceptance, the buyer can so act as to be estopped to deny his receipt of the goods, as where he re- sells them. Chaplin v. Rogers, 1 East, 192. e. " Earnest " and " Part Payment." 57. How do earnest and part payment differ? Earnest is money or money's worth given by the buyer to the seller, to be forfeited to the latter if the buyer does not carry c his bargain. Artcher v. Zeb, 5 Hill (S. Y.). 200. For the history of Earnest, see Howe v. Smith, 27 Ch. Div. 89. 394 QUESTIONS AND ANSWERS. In part payment there must be an actual transfer of money or money's worth, but without the agreement to forfeit. That which is given in earnest may be accepted in the end as- part of the pay- ment, but earnest and part payment are not the same thing. " That earnest and part payment are two distinct things is apparent from the seventeenth section of the Statute of Frauds, which deals with the,m as separate acts,' each of which is sufficient to. give validity to a parol contract." Per Fry, J., in Howe v. Smith, 27 Ch.'Div. 102. f. " Note or Memorandum in Writing." 58. A. sells certain goods to B., and several days after obtains from B. a memorandum of the transaction, from which, however, one of the essential terms of the sale is omitted. Can parol testimony of the omitted term be introduced to satisfy the require- ments of the statute? Would the memorandum satisfy the stat- ute, without such testimony? Parol testimony cannot be introduced to prove any term which has been omitted from a memorandum. The memorandum itself must contain all of the essential terms of the contract. Fry v. Platt, 32 Kan. 62; Lee v. Hills, 66 Ind. 474. Missouri, however, allows missing terms of a memorandum to be supplied by parol testimony. Lash v. Parlin, 78 Mo. 391; Ellis v. Bray, 79 id. 227. The memorandum must also be certain, and where it is claimed to contain some terms which were not adopted in the contract, parol evidence as to which terms were actually adopted is inad- missible. Brodie v. St. Paul, 1 Ves. Jr. 326. In short, the memorandum to satisfy the statute must be complete. The fact that the memorandum was made three days later would not affect it, however. It may be made at any time before action is brought. Heidman v. Wolfstein, 12 Mo. App. 366. % 59. What are the terms of a contract of sale, which must ap- pear in a memorandum? The memorandum (1) must show who are the parties. Grafton v. Cummings, 99 IT. S. 100. (2) Must identify the goods sold. Lente v. Clarke (Fla.), 1 So. Eep. 149. (3) Must state the price to be paid, if any has been agreed upon. Fulton v. Robinson, 55 Tex. 401. (4) Must state the conditions of the contract, if any. McElroy y. Buck, 35 Mich. 434. (5) In many States the mem- orandum must also state the consideration for the defendant's promise to sell. The cases so holding have been based upon the principle that the statute required the memorandum of an agreement, and that the consideration was a necessary part of any binding agreement. This rule was established in Wain v. "\Varlters, 5 East, 10. See also Browne on Statute of Frauds, 406. The States requiring the consideration to be stated are: Alabama, Colorado, SALES. 095 Delaware, Georgia, Kansas (semble), Maryland, Minnesota, Mon- tana, New Hampshire, New Jersey, New York, Wisconsin. The statutes expressly require the statement of the consideration in Ala- bama, California, Minnesota, Nevada and Oregon. On the other hand, the following States hold that the considera- tion need not be stated in the memorandum: Arkansas (semble), Connecticut, Florida, Indiana, Kentucky, Louisiana, Maine, Massa- chusetts, Michigan, Mississippi, Missouri, Nebraska (semble), North Carolina, Ohio, Tennessee, Texas, Vermont, Virginia. The statutes provide that the consideration need not be stated, in Illinois, In- diana, Kentucky, Maine, Massachusetts, Michigan, Nebraska, New Jersey and Virginia. 8 Am. & Eng. Ency. (1st ed.) 727, note 4. 60. Is it necessary that a memorandum, in order to satisfy the statute, should be made expressly for that purpose? No. Any paper which contains the necessary facts satisfies the requirements of the statute. Thus, a bill of parcels, a receipt for money, an account stated, or a sheriff's return on an execution, may be a sufficient memorandum. 8 Am. & Eng. Ency., p. 711. 61. A., in order to satisfy the statute, offers at the trial several letters signed by B. f which, taken together, contain all of the terms of the contract? Can the letters be construed together as a memo- randum? Yes. A memorandum may consist of any number of papers, but in order to comply with the terms of the statute, the separate papers, if all signed, must be connected physically, or by reference or internal evidence, so that no parol evidence is necessary to es- tablish their connection with the contract. If some of the papers are unsigned they may still be used to make up the memorandum, if they are connected (with some paper which is signed) in the way just mentioned. Studds v. "\Vatson, 28 Ch. Div. 305. See Becfc- vith v. Talbot, 95 TJ. S. 289; Grafton v. Cummings, 99 id. 100. The signature to the memorandum "need not, however, be very formal. It may be printed or stamped, and may be by mark or initials. Drewrv v. Young, 58 Md. 546; Hubert v. Moreau, 2 Car. & P. 528; Salmon, etc., Co. v. Goddard, 14 How. (U. S.) 446. . In connection with the signature of a memorandum, it is im- portant to notice that the statute only requires that it should be signed by the " parties to be charged." It is not necessary that there should be a memorandum upon which both parties could be held. Marqueze v. Caldwell, 48 Miss. 23; Alabama, etc., Ins. Co. T. Oliver (Ala.), 2 So. Eep. 445. Michigan, however, is contra, and Tequires the signature of both parties. Wilkinson v. Heavenrich, 58 Mich. 574; s. c., 55 Am. Rep. 708. 396 QUESTIONS AND ANSWEES. g. " Agents." 62. Can a memorandum be signed by a third person, as agent for both parties, so as to satisfy the contract? Yes. Any person who is authorized to sign by both parties can execute a memorandum binding upon both. It is customary in many transactions for a third person to act. Thus, a broker is agent for both parties, if his position is known to both. North v. Mendel, 73 Ga. 400; s. c., 54 Am. Eep. 879. So also an auctioneer is an agent for both parties at the time of the sale. Springer v. Kleinsorge, 83 Mo. 152. But after the sale he has not the further authority to bind the buyer by signing a memorandum, and is- simply the agent of the seller. Meers v. Carr, 1 H. & N". 484. And it has even been held that, when acting lor the seller, a subsequent memorandum signed by the auctioneer is insufficient. Price v. Durin, 56 Barb. (N. Y.) 647. . h. Effect of Statute. 63. What is the effect of the Statute of Frauds? The question of the effect of the statute upon contracts to whicb it applies is one upon which courts have differed widely. The weight of authority, however, is that the statute simply affects the remedy, preventing (if it is set up) the enforcement of the contract or the recovery of damages for its breach, but not rendering- the contract void. It is held, therefore, that only parties to the contract can set up the statute as a defense. Simmons v. More, 100 N. Y. 140; .Wright v. Jones, 105 Ind. 17. XIII. FRAUD. 64. A. sells goods to B., by bill of sale, but retains possession of the goods. Execution is issued upon a judgment against A., and these goods are seized under it. Can B. make good his claim to the goods? The question is decided differently in different jurisdictions. In all States it is regarded as suspicious when a vendor keeps posses- sion of goods capable of delivery, that fact being indicative of an attempt to defraud creditors. The difference in the rules adopted By the several States rests upon the varying weight which is given to this evidence of fraud. 1. In some States it is held that the possession of goods after sale is a conclusive badge of fraud, as a rule of law, and that no evidence of good faith can affect this conclusion. The States so holding are Illinois, Florida, Iowa, Kentucky, California. Con- necticut, Delaware. Nevada. Vermont, Colorado. 2. A second view is, that possession of the goods after the sale is prima facie a fraud in law, and if unexplained becomes a fraud, as a rule of law for the court to lay down in all cases, and not to- be submitted to the jury. This view prevails in Indiana, Missouri, SALES. 397 Montana, New Hampshire, Pennsylvania, Wisconsin, New York, and in the United States courts. 3. The third view, which is most generally recognized as the sound one, is that where the possession of goods does not accompany the act or instrument of transfer, the possession of the goods by the vendor is pritna facie evidence of fraud for the jury, sufficient to warrant, but not necessarily sufficient to require, the finding that the sale was fraudulent; that the question of fraud is always for the jury, and never for the court. The courts so holding are, Ala- bama, Arkansas, Georgia, Maine, Maryland, Massachusetts, Mich- igan, Minnesota, Mississippi, Nebraska, North Carolina, Ohio, Ore- gon, Rhode Island, South Carolina, Tennessee, Texas, Virginia, West Virginia. For an exhaustive collection of cases on the whole subject, see Benjamin on Sales (Bennett's 6th ed.), p. 458. In some cases a distinction has been made between a mortgage and an absolute sale, and between public and private sales. See Benjamin on Sales {Bennett's 6th ed.), 489, with cases collected for all jurisdictions. 65. A., by making fraudulent misrepresentations as to his financial standing, induces B. to sell him some goods. A. f at once, resells the goods to a bona fide purchaser for value. Can B. retake the goods ? By the best authority he cannot. Title would pass to A. as B. intended that it should, and A.'s fraud would only render the title voidable as between the parties. A. could, therefore, transfer title, and any bona fide purchaser for value would take title, free from the taint of fraud. Paige v. O'Neal, 12 Cal. 483; Meara v. Waples, 3 Houst. (Del.) 581. See also Ques. 40, supra. 66. A. orders goods by mail from B., fraudulently represent- ing himself as a well-known merchant. He receives the goods and immediately sells them to a bona fide purchaser for value. Who has title to the goods? B. never parted with title to the goods. He never intended to give title to A., but to the person A. represented himself to be. A. never having had title, could transfer none. Cundy v. Ldndsey, 3 App. Cas. 459; compare Holmes, Com. Law, 312-313; Alexander T. Swackhamer, 105 Ind. 81. XIV. FACTORS' ACTS. The New York act, which is a representative statute, provides: Section 1. That every person in whose name any merchandise shall be shipped, shall ' be deemed the true owner, so far as to entitle the consignee of such merchandise, acting in good faith, to a lien thereon (1) for any money advanced or negotiable security given by such consignee for the use of the person in whose name 398 QUESTIONS AND ANSWERS. the shipment is made; and (2) for any money or negotiable paper received by 'the person in whose name such shipment shall have been made, for the use of the consignee. 2. The consignee so advancing money must not have notice by the bill of lading, or otherwise, that the person in whose 'namer the shipment was made was not the actual and bona fide owner thereof. 3. Every factor or other agent intrusted -with the possession of any bill of lading, custom-house permit, or zvarehouse-keeper's receipt for the delivery of any such merchandise (referring to section 1); and every such factor or agent, not having the documentary evi- dence of title, who shall be intrusted with the possession of any merchandise for the purpose of sale, or as security for any advances to be made or obtained thereon, shall be deemed to be the true owner thereof, so far as to give validity to any contract made by such agent with any other person, for the sale or disposition of the whole or any part of such merchandise, for any money advanced,, etc., by such other person on the faith thereof. 4. The pledgee of goods, as security for an antecedent debt,, shall not acquire any greater right or interest in the goods than, was possessed or might have been enforced by the agent at the time of making the pledge. 5. Nothing contained in the last two preceding sections shall prevent the true owner of merchandise, so deposited, from receiv- ing the same, upon repayment of money advanced, and satisfying euch lien as exists in the favor of the agent who deposited the same, nor from recovering any balance in the hands of the pledgee,, resulting from the sale of such merchandise. 6. The act shall not authorize a common carrier, warehouse Keeper, or. other person to whom property may be committed for transportation or storage only, to sell or hypothecate the same. Lawe.K Y., 1830, chap. 179; Rev. Stat. (Banks* 9th ed.) page 2006. Similar statutes have been passed in many States. Pennsylvania^ Brightly's Purd. Dig. (12th ed.) 867; Ohio, Rev. Stat. 1880 r 3216; Massachusetts, Pub. Stat. 1882, p. 417; Rhode Island, Pub. Stat. 1882, p. 332; Maine, Rev. Stat. 1871, p 326; Maryland, Rev. Code, p. 291; California, Civ. Code, 1897, .2367-2369, 2991. The agent must be an agent in a mercantile transaction; a clerk or servant is not such an agent. Benjamin on Sales (6th Am. ed.), 20-21, and cases cited. 67. Has an agent., intrusted with goods with authority to sell, authority to receive payment? Yes. " An agent authorized to sell personal property, which he has in his possession, and can deliver, must, in the absence of any known limitation upon his authority, be authorized to receive the priVe." but he has no authority to receive -payment before it is due. Whiton v. Spring, 74 N. Y.' 169, at 173; Seiple v. Irwin, 3O Penn. St. 513. SALES. 399 68. A., a cotton broker, obtains possession of goods by fraud from B. and sells them to C., who is innocent of A.'s defective title. In an action in trover by B. against C., C. relies on the Factors' Act to perfect his title. Judgment for whom, and why? Judgment should be for the plaintiff. A. never obtained title and the goods were not intrusted to him as agent of B. The Factors' Act, therefore, does not apply. Hollins v. Fowler, L. R. 7 H. L. 757, at 763; First Nat. Bk. of Toledo v. Shaw, 61 N. Y. 283, at 298. 69. What is the effect of indorsing a warehouse receipt? There is considerable conflict of opinion. In a few States, ware- house receipts are, by statute, made negotiable by indorsement New York, Massachusetts, Illinois, Kentucky. In California the same effect is given to the transfer of a ware- houseman's receipt as is given to the transfer of a bill of lading. Davis v. Russell. 52 Cal. 611. See Benjamin on Sales (6th Am. ed.), 1213. SURETYSHIP*. [NOTE. To assist in keeping the parties clearly in mind, in forming the questions the letter C. has been used in every case to represent the creditor, P. the principal debtor and S. the surety.] I. NATURE OF CONTRACT. 1. What elements are necessary to constitute suretyship? (a) There must be three parties, a creditor, or obligee; & principal debtor, or obligor; a surety. (b) There must be two obligations running to the creditor, one from the principal debtor, and one from the surety. (c) As betweeen principal debtor and surety, the former must be the person ultimately liable. A surety is "one who is bound with and for another who is primarily liable and who is called the principal." Webster's Diet. Suretyship is " the obligation of a person to answer for the debt, default, or miscarriage of another." Bouvier's Law Diet. The obligation is contractual in its nature and it usually arises out of express contract, though it may also be created by operation of law, as in Cutting Packing Co. v. Packers' Exchange, 86 Cal. 574 (where the assignment of a non-negotiable contract was con- sidered to place the assignor in the position of a surety to the other contracting party for the assignee), or by estoppel, as in Lynch v. Smith, 25 Cal. 103 (where one whose name had. without his authority, been signed as surety on a bond, after knowledge of that fact, stood by and allowed the obligee to act to his prejudice on faith of such signature). The general principles of contract are applicable to its creation. The promise of the surety may be before, after, or simultaneous with that of the principal. As in any other contract consideration is, of course, necessary. The foregoing -will distinguish suretyship from: (1.) Novation, where the liability of the original debtor is extin- guished and never coexists with that of the new obligor. In novation there are never two simultaneous obligations running to the obligee, for " if debtor, creditor, and a third party agree that the third party shall be substituted for the debtor, the debtor is exonerated." Colt- man, J., in Bird v. Gammon, 3 Bing. N. C. 883. (2.) Indemnity. where the contract is to protect the indemnitee against his liability to another, not to guarantee the discharge of an- other's liability to him. Indemnity is best illustrated by the common [400] SURETYSHIP. 401 casualty insurance, where an employer is insured against liability to bis employees for personal injury or where a shipowner is insured against liability for collision, etc. (3.) Assignment of a chose in action where the assignor guarantees payment. Here the assignee (creditor) can sue only in the name of his assignor and accordingly has no direct right of action against the debtor, as required by paragraph (b) supra. In States where the as- signee of a chose in action is, by statute, given the right to sue the obligor in his own name, the situation approaches very near to surety- ship. Such statutes, however, merely alter the form of remedy, and under them, as at common law. the assignee takes subject to all defenses good against his assignor. The obligor might, therefore, successfully defend, leaving the assignor still liable on his guaranty of the debt. The assignor's obligation in such cases is, therefore, something more than that of a mere surety. (4.) Transactions where B. at A.'s request, and on his promise to pay, delivers goods to or confers some other benefit on C. Here A. is the only person liable and clearly no suretyship exists. See Stillman v. Dresser, 22 R. I. 389, and Watson v. Perrigo, 87 Me. 202. 2. Distinguish between suretyship proper and guaranty. The word suretyship is broadly used to include both suretyship proper or strict suretyship and guaranty. The distinction is, how- ever, often important. In both suretyship proper and guaranty, two persons are liable to one obligee in case of nonperformance of a single obligation for which performance, as between themselves, one only is respon- sible. In suretyship they are equally and primarily liable, as against the obligee; both have assumed the obligation in absolute terms, and either or both may be sued immediately upon default. In guaranty, on the other hand, the obligation of the guarantor is avowedly secondary and conditional on default by the principal. The obligee may, for most purposes, treat a surety as a principal debtor; he need not notify him of the principal's default nor need he seek first to enforce the principal's liability. In other words, "the surety is bound with his principal as an original promisor," whereas "the contract of a guarantor is his own separate contract. It is in the nature of a warranty by him that the thing guaranteed to be done by the principal debtor shall be done, not merely an engagement jointly with the principal to do the thing. The origi- nal contract of the principal is not his contract and he is not bound to take notice of its nonperformance, and therefore the creditor should give him notice. and it is universally held that, if the guarantor can prove that he has suffered damage by the failure to give such notice, he will be discharged to the extent of the damage thus sustained. It is not so with a surety." Mc- 26 402 QUESTIONS AND ANSWERS. Millan v. Bull's Head Bank, 32 Ind. 11. Perhaps the most im- portant practical difference between suretyship and guaranty arises in connection with the Statute of Frauds, infra, pp. 404 et seq. II. NOTICE OF ACCEPTANCE OF THE GUARANTY AND OF DEFAULT BY THE PRINCIPAL. 3. 8. gave P. a letter promising that any one who should make advances to P. for the carrying on of P.'s business during the en- suing year, might look to S. for payment if P. failed to pay. C. made such advances in reliance on the letter, and, on P.'s default y sued S., who pleaded that C. had never given him notice of his ac- ceptance of the guaranty. Is the defense valid? Yes. According to the weight of authority, where a continuing- guaranty or general letter of credit is given, it is held to be an offer which ripens into a contract only when acceptance is com- municated to the offerer. See Davis v. Wells, Fargo & Co., 104 U. S. 159. "A party giving a letter of guaranty has a right to know whether it is accepted, and whether the person to whom it is- addressed means to give credit on the footing of it or not. It may be most material, not only as to his responsibility, but as to future rights and proceedings. It may regulate in great measure his course of conduct, and his exercise of vigilance in regard to the party in whose favor it is given. Especially it is important in case of a continuing guaranty, since it may guide his judgment in re- calling or suspending it." Lee v. Dick, 10 Pet. 482 ; De Cremer v. Anderson, 113 Mich. 578; Bishop v. Eaton, 161 Mass. 496, accord; cf. Lennox v. Murphy, 171 Mass. 370. The doctrine set forth above seems open to theoretical objection. The principle of contracts is firmly settled that an offer to become bound if A. performs a specified act (an offer for a unilateral contract) i accepted by A.'s performance without more, and that no notice or prom- ise need be given by A. Thus in Lennox v. Murphy, supra, the court said, by Holmes, J. : " There is no universal doctrine of the common law, as understood in this commonwealth, that acceptance of an offer must be communicated in order to make a valid simple contract." See also Langdell, Summary Contract, 2. The requirement that the guar- antor .receive notice of acceptance is the outcome rather of business convenience than of strict theory. " When a proposition is made by a man for a thing to be done for himself, he must know, when done, that it is done on his proposition. But where he proposes his respon- sibility for a thing to be done for another, he may not know that It is done, or, even if he does, he will not know whether it was done on his proposition, or on the sole credit of the third person, or on some other security." Collamer, J., in Oakes v. Weller, 13 Yt. 106. Professor Langdell says: " Sometimes the consideration for a promise is of such a nature that the promisor will have no sure means of knowing whether SURETYSHIP. 403 or not it has been performed, unless he is informed by the promisee; and this will frequently be a sufficient reason for holding the offer to contain an implied condition that notice shall be given of the perform- ance of the consideration within a reasonable time after it is performed. * * * Thus, if A. offers to B. to become guarantor for C. to a cer- tain amount, if B. will give C. credit to that amount, A. will become guarantor as soon as the credit is given, but his guaranty may rea- sonably be held to be conditional upon his receiving notice within a reasonable time afterwards that the credit has been given." Summary Contract, 6 ; and see to same effect, Bishop v. Eaton, 161 Mass. 496. Where the guaranty is " absolute," that is, where the circumstances do not imply notice of acceptance as a condition of liability, such notice is not required. Bechtold v. Lyon, 130 Ind. 194; Boyd v. Snyder, 49 Md. 325. The line which marks these cases has never been satisfac- torily denned and the doctrine is sometimes applied to cases indistin- guishable on the facts from those in which such notice is required, as in City Bank v. Phelps, 86 N. Y. 484. It is generally held, too, that the guarantor of an obligation whose terms are specific and certain is not entitled to notice of acceptance, the circumstances in such case not being such as to leave the guarantor in doubt as to the existence and extent of his liability. " The distinc- tion is between an offer to guarantee a debt about to be created, the amount of which the party making the offer does not know and it is uncertain whether the offer will be accepted so that he may be ulti- mately liable, and the case of an absolute guaranty, the terms of which are definite as to its extent and amount. In the latter case no notice is necessary to the guarantor, whereas in the former case the contract is not completed until the offer is accepted." Allen v. Pike, 3 Cush. (Mass.) 238. As a corollary of the doctrine that a guarantor is entitled to notice of acceptance, it is generally held that in case of a general or continuing guaranty, notice of acceptance must be followed, when the transaction is ended, by notice of the extent of the advances which have been made. See 1 Brandt, Suretyship (3d ed.), 211. 4. C. made advances to P. in reliance on S.'s promise that he u-ould pay any such advances, up to $6,000, if P. did not. Due notice of acceptance and of the amount of the advances ivas given to S. P. made default, and C. brings action against S* without giving him notice of P.'s default and without any proceedings against P. beyond demand. Can C. recover? Yes, if S. has not been damaged by C.'s failure to give notice. It is well settled by the great weight of authority that in cases of guaranty, where the guarantor's liability is avowedly secondary, it is the duty of the creditor to give notice of the principal's default ; Globe Bank v. Small, 25 Me. 366 : McDougal v. Calef. 34 X. H. 534; but it is equally settled that failure to do so is not a defense unless it has damaged the guarantor, as by making his remedy against the principal less easy or by postponing adjustment until the principal is insolvent. " The laches of the plaintiff and thft 404 QUESTIONS AND ANSWERS. loss of the defendant must concur to constitute a defense." Mat- thews, J., in Davis v. Wells. Fargo & Co., 104 U. S. 159 ; see Furst & Bradley Co. v. Black, 111 Ind. 308. Xor is C.'s failure to sue P. a defense to S., for S.'s promise was not conditional upon anything except P.'s default. C.'s duty was to make such demand upon P. as to put him in default, and his right against S. thereupon accrued. In cases of strict suretyship, as distinguished from guaranty, the surety who, on the face of the instrument, is absolutely liable, is not entitled to notice of the principal's default, nor to await the issue of proceedings against the principal. Where true guaranty exists the guar- antor is, as already stated, entitled to such notice. This rule is. how- ever, frequently relaxed, especially in cases of the guaranty of nego- tiable paper. Roberts v. Hawkins, 70 Mich. 566 ; Lowe v. Beckwith, 14 B. Mon. (Ky.) 184. It is impossible to lay down a rule which will reconcile all the cases. In each the court endeavors to ascertain what the parties intended and to act accordingly. " The rights and duties of parties to guaranties must from the variety of circumstances under which they have been entered into be materially governed by the par- ticular circumstances of each case." Story, J., in Wildes v. Savage, 1 Story, 22, at p. 35. Whether the guarantor is also entitled to insist that the creditor's legal remedy against the principal be exhausted before suit is brought against him must depend upon the precise terms of the obligation. Where the guaranty is of the " payment of a debt " it is absolute and the guarantor is liable at once. Jackson v. Decker, 14 N. Y. App. Div. 415, at p. 422; Peterson v. Russell, 62 Minn. 220. Where it is a guar- anty that a debt will be " collected " it is held that all legal remedies against the principal must be exhausted before " collection " has failed, and that such remedies must be promptly enforced. Northern Insur- ance Co. v. Wright, 76 N. Y. i45. The guarantor's undertaking in such la not necessary, however, as payment ipso facto works an equitable transfer of the creditor's right to the surety (Wilson v. Kiruball, 27 N. H. 300), and without an assignment he may sue in the creditor's name. The few authorities to the contrary do not represent the gen- eral law. The creditor stands in the position of a trustee and if, on payment by the surety, he releases the principal, the surety may, it would seem, in equity set aside the release and sue in the creditor's name in spite of it. See Smith v. Rumsey, 33 Mich. 183. On principle, and according to the weight of authority, the surety in the case of a specialty becomes a specialty creditor when subrogated. Stearns, Surety- ship, 266; cf. Smith v. Rumsey, 33 Mich. 183. In some jurisdictions this rule is established by statute. 19 & 20 Viet, chap. 97, 5; cf. Ala. Code, 1896, 3888. Similarly, a surety who has paid the debt is entitled by subrogation to any securities held by the creditor for the performance of the prin- cipal's obligation and to any judgment on such obligation recovered by the creditor against the principal. Lewis v. Palmer, 28 N. Y. 271; Townsend v. Whitney, 75 N. Y. 425. A surety upon payment is also subrogated to the creditor's rights and securities as against other sureties. He may thus reimburse him- self fully from any other sureties who are, as against him, primarily liable, and he may similarly recover pro rata from cosureties. Felton v. Bissell, 25 Minn. 15, see Lidderdale v. Robinson, 12 Wheat. (U. S.) 594: Sheldon (2d ed.), Subrog., 140 ct seq. It is also generally held that the surety of a surety (i. e. a person who has agreed with a surety to save him harmless) if he pays the debt, is entitled to subro- gation and indemnity against the principal debtor. McDaniels v. Flower Brook Mfg. Co., 22 Vt. 274; Hall v. Smith, 5 How. (U. S.) 96. It has already been noted that subrogation presupposes that the creditor has been fully paid. The right may never be used by the surety to the prejudice of the creditor. It is a doctrine of equity, (Moore v. Watson, 20 R. I. 495), designed to work justice to the surety, but not to enable him to indemnify himself at the expense of the cred- itor. Stearns, Suretyship, 262; Crump v. McMurty, 8 Mo. 408. 2. An express contract of indemnity is. in practice, frequently made by the principal to the surety. In the absence of this, however, the fact of payment by the surety and the relation of the parties, as already noted, gives rise to an implied contract of indemnity upon which suit at law lies as an alternative to the enforcement of the right of subro- gation. Such a suit is, of course, in the surety's own name. The right to bring it arises pro tanto, upon payment by the surety of any part of the principal's debt. Bullock v. Campbell, 9 Gill (Md.) 1S2: Wilson v. Crawford, 47 Iowa, 469. The Statute of Limitations runs from the time of the actual payment by the surety. Thayer v. Daniels, 110 Mass. 345. Recovery is limited to the amount actually paid by the surety. Brandt, Suretyship (3d ed.), 233; Coggeshall v. Ruggles, 62 111. 401. The surety of a surety may, according to the weight of au- 410 QUESTIONS AXD AXSWEBS. thority. maintain a direct action for indemnity against the principal. See Hall v. Smith, 5 How. (U. S.) 96. The right of indemnity requires that the surety became so at the request of the principal debtor, express or implied. Osboru v. Cunningham, 4 Dev. & Bat. (X C.) 423. A surety who has paid may also obtain indemnity by the cancella- tion or set-off pro tan to of a debt owed by him to the principal debtor. Merwin v. Austin, 58 Conn. 22. His right does not, however, extend beyond his proportionate share of the original debt. Cosgrove v. Mc- Kasy, 65 Minn. 426. 3. As between cosureties there is a similar implied contract of con- tribution, whereby they are to bear the loss equally, unless some other division is expressly agreed on. Like indemnity, contribution is of equitable origin, but may now be enforced by action at law (see Lans- dale v. Cox, 7 T. B. Mon. (Ky.) 401), in the surety's name. or. as al- ready noted, by means of the equitable right of subrogation in the credi- tor's name. The principle of contribution was stated by Alderson. B., in Pendlebury v. Walker, 4 Y. & C. Ex.. at p. 441, as follows : " Where the same default of the principal renders all the cosureties responsi- blej all are to contribute; and then the law superadds that which is not only the principle but the equitable mode of applying the prin- ciple, that they should all contribute equally, if each is a surety to an equal amount ; and if not equally, then proportionably to the amount for which each is a surety." In Craythorne v. Swinburne, 9 Rev. Rep. 264 (another report in 14 Yes. 160), Lord Eldon said: "In the case of Deering v. Earl of Winchelsea, * * * it is decided that, whether they are bound by several instruments or not, whether the fact is or is not known, whether the number is more or less, the principle of equity operates in both cases ; upon the maxim that equality is equity ; the creditor, who can call upon all, shall not be at liberty to fix one with payment of the whole debt : and upon the principle, requiring him to do justice, if he will not, the court will do it for him." There is some authority, which does not, however, represent the gen- eral law, to the effect that in equity the right of a surety to contribu- tion from a cosurety exists only where the principal is insolvent. See 1 Brandt, Suretyship (3d ed.), 316. 9. S. executed a bond making him surety for P.'s debt of $10,000 to C. Subsequently X. executed a second bond whereby he be- came P.'s surety for the same debt, and he received from P. for his security a mortgage on land worth $5,000. When the debt fell due, S. and X. each paid C. $5,000 in discharge of it, and thereafter P. paid X. $2,500 by way of partial reimbursement. What rights has S. against X.? It is well settled that sureties for the same debt, who become so before suit brought, are cosureties, even though they assume their obligations at different times, by different instruments, and for different considerations, and even though each is ignorant of the SURETYSHIP. -ill other. See Sohram v. Werner, 85 Hun (X. Y.), 293; Golson v. Brand, 75 111. 148. The rule is different as between the surety fora debt and one who, in the course of legal proceedings to recover the debt from the principal, becomes surety for the principal debtor on an appeal bond, etc. In such a case the obligations of the two sure- ties are essentially different in tenor ; they are not cosureties and no right of contribution exists between them. Dunlap v. Foster, 7 Ala. 734; Friberg v. Donovan, 23 111. App. 58; and see Cowan v. Duncan, Meiggs (Tenn.), 470. In the case supposed, however, S. and X. are cosureties. A surety is entitled, by virtue of his right of contribution, to share pro rata in security given by the principal to a cosurety prior to the discharge of the debt; and this, accord- ing to the weight of authority, even though the security was ex- pressed to be solely for the benefit of the surety receiving it. Steel v. Dixon, 17 Ch. Div. 825; Stearns, Suretyship, 279 et seq., % 291 ; Commissioners of McDowell Co. v. Nichols, 131 N". C. 501, contra. In Steel v. Dixon, Fry, J., said : " * * * As between co- sureties there is to be equality of the burden and of the benefit * * *. Each surety must bring into hotchpot every benefit which he has received in respect of the suretyship which he undertook, and if he has received a benefit by way of indemnity from the principal debtor, it appears to me that he i bound, as between himself and his cosureties, to bring that into hotchpot, in order that it may be ascertained what is the ultimate burden which the cosureties have to bear, so that the ultimate burden may be distributed between them equally or proportionably as the case may require." It fol- lows that S. is entitled to share equally with X. in the benefit of the mortgage. X. is, however, entitled to keep the $2,500 free of any claim by S. When the creditor has been paid by the cosureties ratably, the rights of contribution as between themselves become fixed as of that time and " each becomes an independent creditor of the prin- cipal for the amount paid by him " (1 Brandt, Suretyship (3d ed.), 299), and is entitled to keep for his own use any reimbursement which his diligence may thereafter obtain from the principal. Harrison v. Phillips, 46 Mo. 520; see also Messer v. Swan, 4 N". H. 481. It is somewhat difficult to assign a valid theoretical rea- son for this difference in the rights of contribution before and after payment of the creditor. The distinction must, seemingly, rest on the practical ground that it is advantageous to fix the rights of the parties as soon as possible and end the constant aris- ing of new equities to be adjusted. See 16 Harv. L. Rev. 439. 10. 8. was surety for P. on a bind to C. for $5.000. C. was in- debted to P. in the sum of $2,000, and S. was indebted to P. in the sum of $1,000. C. sues S. on the bond. What are the rights of S. ? (1) He may file a bill in equity to compel P. to pay the bond and, pending such payment, may perhaps temporarily enjoin the 412 QUESTIONS AND ANSAVEBS. prosecution of C.'s action. See note infra. (2) He may retain the $1,000 which he owes P. as security for the performance of P.'s duty to free him from liability to C., or it would seem that he may, if he prefers, pay it to C. Scott v. Timberlake, 83 X. C. 382 ; Me- Knight v. Bradley, 10 Eich. Eq. (S. C.) 557; and see Richardson v. Merritt, 74 Minn. 354. He may not at law use C.'s debt to P. as a set-off, according to the weight of authority, especially where P. is not before the court, because that right is one belonging to P., not to S., and it lies in P.'s " election to determine whether it shall be used defensively, or whether he will bring his own action for the damages, or whether he will forego his claim altogether. The defendants (sureties) have no control over him in this respect and cannot borrow and avail themselves of his rights." Lasher v. Williamson, 55 X. Y. 619. If both principal and surety are in court and plead the set-off it will be allowed (Mahurin v. Pearson, 8 X. H. 539), and it is generally held that the surety may in equity bring in all the parties and thereupon avail himself of a set-off in favor of his principal. Stearns, Suretyship, 117; see also Bechervaise v. Lewis, L. E., 7 C. P. 372. Where the creditor is insolvent, it has been held that a surety may in equity obtain the right to use his principal's claim against the creditor as a set-off, even though the principal be not before the court. Edmunds' Assignee v. Harper, 31 Gratt. (Va.) 637, under Virginia statute; see Coffin v. McLean, 80 X. Y. 560. And the same has been held where the principal is insolvent. Jarrett v. Martin, 70 X. C. 459. In addition to the rights of subrogation, indemnity, and contribution already referred to, a surety may, in a proper case, compel his prin- cipal to pay the debt before the creditor collects from the surety, and thus obtain exoneration. " Sureties also are entitled to come into a court of equity after a debt has become due, to compel the debtor to exonerate them from their liability by paying the debt." Story, Eq. Jur., 327; and see Bechervaise v. Lewis. L. R., 7 C. P. 372. This* right exists only in equity and does not arise until the principal debt- or's obligation has matured. American Bonding Co. v. Logansport &c. Gas Co., 95 Fed. Rep. 49. The right is enforced by a bill qtiia timet and is in the nature of specific performance of a contract to save the surety harmless. Frequently an express contract of exoneration la given by the principal debtor, and in such cases equity will specifically enforce it. Ranelaugh v. Hayes, 1 Vern. 189. Whether the courts will, in aid of the surety's exoneration, temporarily enjoin the cred- itor from prosecuting suit against the surety, pending proper steps to compel the principal to give exoneration is not definitely settled. Such an injunction has been denied in the Federal courts, on the ground that it would be an obstruction of the creditor's right to enforce the surety's liability. American Surety Co. v. Lawrenceville Cement Co.. 96 Fed. Rep. 25, at p. 30. A contrary view seems to be hinted by the court in Wolmershausen v. Gullick, L. R. 1893, 2 Chan. 514. SURETYSHIP. 413 V. DISCHARGE OF SURETY. 1. Use of Principal's Defenses. 11. P. purchased a horse from C., who warranted it to be sound. P. promised to obtain and deliver to C. certain chattels in pay- ment, and S. at the same time agreed with C. that if P. did not perform his agreement, he (S.) would perform it. P., having made default, C. sues S., who pleads (1) that the warranty as to the horse was broken, and (2) that P. was insane at the time of the contract. Demurrer to each plea. What judgment? Judgment for S. on the first plea, and for C. on the second. Either of these pleas would be a defense to P., the principal. It is frequently stated that whatever is a defense to the principal is also a defense to the surety. See Ames v. Maclay, 14 Iowa, 281. But this is far from universally true. " The surety is not entitled to every exception which the principal debtor may urge. He has a right to oppose all which are inherent to the debt, not those which are personal to the debtor." Porter, J., in Baldwin v. Gordon, 12 Martin (La.), 378. The rule may be stated with substantial ac- curacy by saying that defenses available to the principal debtor which arise from the act or default of the creditor, are also de- fenses to a surety who was known to the creditor as such. Thus if the contract between principal and creditor is illegal, that fact is a defense to the surety. Mound v. Barker, 71 Yt. 253. So if the principal's obligation was created by the fraud or duress of the creditor, the surety may defend on that ground (Putnam v. Schuyler, 4 Hun (N.Y.), 166; Osborn v. Bobbins, 36 N. Y. 365; but cf. Hazard v. Griswold, 21 Fed. Bep. 178), and so if the creditor release tl e principal, p. 414 infra. Similarly in the case supposed, the defense of failure of consideration due to C.'s default is available to S. Sawyer v. Chambers, 43 Barb. (N. Y.) 622; Scrogffin v. Holland, 16 Mo. 419 ; Gunnis v. "VYeigley, 114 Pa. St. 191; Cooper v. Joel, 1 DeGex. Fich. & Jo. 240; Ohio Thresher & Engine Co. v. Hensel, 9 Ind. App. 328. But where the principal has a defense not arising from any act or omission of the creditor, it will not avail the surety. Thus the infancy or coverture of the principal cannot be set up by the surety' (Kims' Executor v. Young, 34 Pa. St. 60; TVinn v. San- ford, 145 Mass. 302), except where the infant has disaffirmed the contract and returned the consideration, as in Baker v. Kenneth, 54 Mo. 82 ; nor is the insanity of the principal at the time of con- tracting a defense to the surety. Lee v. Yandell, 69 Tex. 34. Similarly the surety on a corporation's contract may not plead that the contract was ultra vires of the corporation. Yorkshire Railway Wagon Co. v. Maclure, L. B., 19 Ch. Div. 478 : Weare v. Sawyer, 44 X. H. 198. In cases where the principal contract is usurious, that fact is a. 414 QUESTIONS AND ANSWERS. defense to the surety if the law makes usurious contracts void. Prather v. Smith, 101 Ga. 283; Harrington v. Findlay, 89 Ga. 385. Such cases are merely one species of the illegal contracts, noted above. Even where usury is a defense personal to the obligor, and to be used only at his option, it Avould seem that his- surety may plead it. See Chapuis v. Mashot, 91 Hun (X. Y.), 565. In this connection may be noted that if a principal debtor success- fully defends, on the merits, a suit by the creditor on the obligation, equity will enjoin the enforcement by the creditor of a judgment recov- ered against the surety on the same obligation. Ames v. Maclay, 14 Iowa, 281. 12. P. was indebted to C. by simple contract in the sum of $1,000. S. executed a sealed guaranty of the debt. Seven years later, C. sued S. on the guaranty. (1) What are the rights of S.? (2} What would they be if P. had been discharged in bankruptcy; and (3) if P. had received a formal release from C.? (1) S. has no defense. The Statute of Limitations would be a defense to P. against C. but the guaranty, being a specialty, is not barred by the lapse of seven years, and the fact that the statute runs in favor of a principal debtor does not, according to the weight of authority, release the surety. Xelson v. First Xat. Bank, 69 Fed. Eep. 798. In this case the surety has lost his right of subrogation, since the creditor no longer has any rights against the principal to which he can be subrogated. His right of indemnity is, however, still perfect, for the statute starts to run against that only when the surety actually pays. Hall v. Thayer, 12 Mete. (Mass.) 130. (2) If P. has been discharged in bankruptcy, S. is still liable to C., but has no right over against P. beyond the right to prove his claim in bankruptcy as a creditor, since P. has been released by the discharge. Cochrane v. Gushing, 12-i Mass. 219; Mace v. Wells, 7 How. (U. S.) 272. (3) If P. has been released by the act of C.. the release inures to the benefit of S. Stearns, Suretyship, 102. Such a release destroys S.'s right of subrogation, since there no longer exists any right in favor of C. to which he can be subrogated, and for this reason S. is discharged. In general, it may be said that discharge of a principal debtor by any cause other than the act of the creditor does not discharge the surety ; but that any act by a creditor which results in the complete or partial discharge of the principal debtor releases the surety pro tantn* "The creditor can do no act by which he reduces the principal's liability, without at the same time reducing the surety's liability, at least to the same extent But the rule is very different where the law SURETYSHIP. 415 reduces or absolves the principal's liability, without the fault or pro- curement of the creditor." Stone, J., in Bean v. Chapman, 62 Ala. 58. This principle would not, of course, apply to a case where there is noth- ing to indicate to the creditor that one of two several obligors is only a surety. Participation by a creditor in a composition of his debtor's creditors, which results in the debtor's discharge under a statute, is not a dis- charge to the debtor's surety. Cilley v. Colby, Gl N. H. 63. The case is treated like one of bankruptcy rather than of voluntary release by the creditor. Cf. Paddleford v. Thacher, 48 Vt. 574, and American Bank v. Baker, 4 Mete. (Mass.) 164. The theoretical basis of the surety's discharge in these and similar cases is that by the act of the creditor one of the surety's rights sub- rogation, indemnity, contribution, or exoneration has been impaired. The surety is a favorite of the law and any act by the creditor which causes him such prejudice works his discharge. It is also held that where a creditor's release to his debtor expressly reserves his rights against the surety the surety remains liable, the release being construed merely as a personal covenant that the creditor will not himself sue the principal debtor. The surety's rights against him, accordingly, remain unimpaired. Bateson v. Gosling, L. R.. 7 C. P. 9 ; see Dupee v. Blake, 148 111. 453 ; cf. Commercial Bank v. Jones, L. R. 1893, A. C. 313 ; see supra, tit. Bills and Notes, ques. 27. In such cases, while the creditor would have no right to sue the principal for his own use. equity would doubtless keep alive the creditor's right against the principal where the surety sought to use it by subrogation. 2. The Giving of Time to the Principal Debtor. 13. P. owed C. $1,000, S. being surety. Before the money was due, C. agreed with P., who was insolvent, that he would extend the time of payment three days if P. would get X. to secure the debt by first mortgaae on certain land of X., worth $10,000. P. did so. The debt being unpaid after the extension, C. sues S., alleging that the transaction benefited S. by bringing in another surety. What are S.'s rights? S. is absolutely discharged. Where a creditor, by a binding contract, extends the principal obligor's time for performance, the surety is released, because his right of subrogation is prejudiced during the period of such extension. The court will not inquire whether or not the surety is actually damaged, nor whether he re- ceives counterbalancing advantages. This is universally law. 1 Brandt. Suretyship (3d ed.). 376; Froude v. Bishop, 25 K Y. App. Div. 514: United States v. Am. Bonding Co.. 89 Fed. Rep. 925. In the leading case of Eees v. Berrington. 2 Ye?. Jr. 540, the court said: "He (the surety) has a right the day after the bond is due to come here and insist upon it? hems' put in suit : The obligee has suspended that, till the time contained in the notes runs 416 QUESTIONS AND ANSWERS. out : Therefore, he has disabled himself to do that equity to the surety which he has a right to demand. * * * You cannot keep him bound and transact his affairs (for they are as much his as your own) without consulting him. You must let him judge whether he will give that indulgence contrary to the nature of his engagement." A surety is not discharged, however, if the creditor had no notice that he is a surety and not a principal obligor (Wilson v. Foot, 11 Mete. (Mass.) 285), nor if the agreement to give time does not amount to a valid and enforceable contract (Lowmau v. Yates, 37 N. Y. 601), nor if it is a mere forbearance, not in pursuance of a binding contract. Bank of Uuiontown v. Mackey, 140 U. S. 220. Similarly, a waiver by a creditor, without consideration, of defaults in performance by the prin- cipal debtor is not sufficient to relieve a surety. Michigan SS. Co. v. American Bonding Co., 104 N. Y. App. Div. 347. In analogy to the cases of release by the creditor, noted above, p. 415, it is held that if, in extending his debtor's time, a creditor expressly stipulate with the debtor that his right against the surety be reserved, the surety will still be bound, and his right of subrogation accordingly kept alive. Brandt, Suretship (3d. ed.), 413. 3. Creditor's Loss of Security. 14. S. became surety for P.'s unsecured debt to C. of $1,000 due July 1st. Thereafter, and before the debt became due, C. ad- vanced $1,000 more to P., payable June 1st, in consideration of P.'s executing to him a mortgage on land worth $3,000 as security for both debts. P. paid the $1,000 due June ist and C. thereupon canceled the mortgage. S. was ignorant of the entire transaction. What are his rights when sued by C. for the $1,000 due July 1st? S. is released. A surety has, as part of his subrogation, a right to the benefit of all securities held by the creditor. If this right is prejudiced by the wilful act of the creditor, the surety is discharged pro tanto, the burden of proof a.: to the extent of the injury being on the creditor. Allen v. O'Donald, 23 Fed. Eep. 573; Baker v. Briggs, 8 Pick. (Mass.) 122; Fielding v. Waterhouse, 8 J. & S. (X. Y.) 424. It is immaterial whether or not the surety knew of the existence of the security (Mayhew v. Crickett, 2 Swanst. (Eng.) 185), and equally so whether it was given at or after the time when he became surety. Holland v. Johnson. 51 Ind. 346 ; see Freaner v. Yingling, 37 Md. 491. Newton v. Chorlton, 2 Drewry. 333, contra, does not represent the weight of authority. When P. executed the mortgage, S.'s right in it became vested, and C. was in the position of a trustee. Upon rjayment, S. would have been entitled to reim- bursement from the security. The cancellation of the mortgage, therefore, effected the surety's release to the extent of the value of the abandoned securitv. and as that value was more than the amount of the debt the discharge was complete. SURETYSHIP. 417 So a surety is discharged where the security is improperly used by the creditor, as where it is sold privately instead of at public sale. Holmes v. Williams, 177 111. 386. It has been held that a surety is discharged if the creditor releases security, whether or not the creditor knew him to be a surety. Templeton v. Shakley, 107 Pa. St. 370; Martin v. Taylor, 8 Bush (Ky.), 384. On principle, It would seem that this holding is erroneous, and it is opposed to the weight of authority. Cases collected, 27 Aru. & Eug. Ency. of Law (2d ed.), 518. The release of security does not, in all cases, operate as a discharge of the surety. If the circumstances are such that a release of security by the creditor has certainly worked no damage to the surety he is not discharged (Neff's Appeal, 9 W. & S. (Pa.) 36; Hardwick v. Wright, 35 Bear. 133). but, as stated above, the surety is given the benefit of any doubt, and the creditor must prove that the surety has not been injured. Dunn v. Parsons, 40 Hun (X. Y.), 77; Fielding v. Waterhouse, 8 J. & S. (N. Y.) 424. Indeed, some cases go so far as to say that the surety's right to discharge is absolute, and that the courts will not inquire whether he is actually damaged. See Antisdel v. Wil- liamson, 1G5 X. Y. 372. Where the surety has in his hands funds of the principal sufficient to indemnify him it would seem that he is not dis- charged by a release of security because he is not damaged. See Thomas v. Wason, 8 Colo. App. 452. By analogy to cases of release of security it is held that where a piece of work is done under contract, payments to be made in instal- ments as the work progresses, the contractor's surety is discharged if the employer pays an instalment before the contractor has completed the specified portion of the work. Taylor v. Jeter, 23 Mo. 244; Village of Chester v. Leonard. 68 Conn. 495. As a surety's right of subrogation involves a right in securities held by the creditor, so his right of contribution from cosureties involves a similar right in securities held by them. See pp. 410, 411, supra. 15. C. recovered judgment against P., who owned a tract of land. By statute, judgments were a lien for ten years on lands of the judgment debtor. C. allowed eleven years to go by, and then sued S. on a bond which he had executed as P.'s surety. Has S. a defense? Yes, according to the weight of authority, he is discharged up to the extent of the value of the lost lien. As already noted, a creditor ordinarily owes a simple surety no duty of diligence in suing the debtor, p. 404, supra. Mere failure on C.'s part to bring action would not have discharged S., for S. should have paid the debt and brought suit himself. But the judgment, once recovered, was a lien on P.'s land, and C.. having thus obtained security, was bound to be diligent in preserving and realizing on it. Clow v. DeYby Coal Co., 98 Pa. St. 432 ; Sherraden v. Parker, 24 Iowa, 28; Stearns, Suretyship, p. 137 et seq. 27 418 QUESTIONS AND ANSWERS. The law is by no means settled as to cases where security Is lost by the creditor's inactivity, or by his neglect to take measures to perfect and realize on it. Some courts apply the principle that a creditor owe no duty of diligence to the extent of holding that he may passively- allow security to slip from his fingers (Wasson v. Hodshire. 108 Ind. 26 ; cf. Freaner v. Tingling, 37 Md. 491 ) . and need not take active steps to enforce it. Carver v. Steele, 116 Cal. 116.' In Pennsylvania it is held that allowing a judgment lien to expire, as in the case supposed above, does not discharge the surety. Kindt's Appeal, 102 Pa. St. 441. The weight of authority is, however, believed to be to the contrary, and the creditor is considered in a measure a trustee of the security. See City Bank v. Young, 43 N. H. 457; Hayes v. Ward, 4 Johns. Ch. (X. Y.) 122. So it has been held that a surety is discharged to the extent of his injury if the creditor lose security by failure to give notice of dis- honor of a note (see City Bank v. Young, 43 X. H. 457, at p. 462) ; by negligent failure to collect a claim (see Wakeman v. Gowdy, 10 Bosw. (X. Y.) 208; Word v. Morgan, Sneed (Tenn.), 79; by failure to give no- tice of an equity, which neglect resulted in the extinction of the equity by a sale for value without notice (Strange v. Fooks, 4 Giff. 408) ; by fail- ure to record an assignment and to exercise a right of entry (Wulff v. Jay, L. R., 7 Q. B. 756; but see N. Y. Exch. Bank v. Jones. 9 Daly (X. Y.), 248) ; by delaying to enter judgment on a verdict, where the debtor became insolvent during the delay (Hayes v. Little, 52 Ga. 555, con- struing a statute) ; and. in general, by failure to " account not only for the money he has actually made out of the pledge, but also for the moneys he might, ought, and should have made out of the pledge, and he must allow for that whether he made them or not, and if by laches he has diminished the value of the pledge he is bound to allow for the sum he ought to have made." Blackburn, J., in Polak v. Everett, L. R., 1 Q. B. D. 669. It has even been held that where a creditor fails in this duty the surety is discharged, even though the creditor was ignorant that he was a surety and not a joint debtor. Holt v. Bodey, 18 Pa. St. 207; contra, Parsons v. Harrold, 46 W. Va. 122; Guild v. Butler, 127 Mass. 386, semble. The decisions contra seem right on principle. Of course, where a surety has expressly stipulated for diligence on the part of the creditor, in preserving and realizing on securities, he is discharged in every jurisdiction if this duty is neglected by the creditor. Walker v. Goldsmith, 7 Oreg. 161 4. Alteration of Contract or Change in Circumstances Affecting Bisk. 16. S. became surety for P. on a lease to P. of sixteen acres of land at a fixed rental. It was later agreed between P. and the lessor, C., that two acres should be surrendered in consideration of C's making a separate lease to P. of another six-acre 'lot without rental. C. sues S. counting on the lease as originally made and also as modified. Has S. a defense? SURETYSHIP. 419 Yes. To suit on the modified lease he may plead nonassumpsit ; to suit on the original lease he may plead the modification which has altered it. The terms alteration and variation are used almost interchangeably in the eases. Irrespective of nomenclature, however, a distinction be- tween two classes of cases should be borne in mind. (1) Those where the original agreement between principal and creditor has been changed or altered either by physical alteration on the face of a written in- strument or by collateral contract rescinding or modifying all or a part of the original agreement; and (2) those where, while the original con- tract remains unchanged, its performance as between creditor and prin- cipal is not in precise accordance with its terms, or where the principal and creditor have in the course of performance brought about a con- dition of affairs not fairly to have been expected by the surety. In the first class of cases, where the contract has been altered without his consent or ratification, it is clearly open to the surety to defend a suit on the altered contract on the ground that he never made such a contract City of New York v. Clark, 84 N. Y. App. Div. 383. " 2Vou haec in foedera veni is an answer in the mouth of the surety from which the obligee can never extricate his case, however innocently or by whatever kind intention to all parties he may have been actuated." Bethune v. Dozier, 10 Ga. 235. He may equally defend a s-uit on the original con- tract by pleading its alteration or partial rescission, and this defense is in some jurisdictions absolute (Antisdel v. Williamson, 165 X. Y. 372; Polak v. Everett, L. R., 1 Q. B. D. 669), and everywhere is valid if the change might work him injury. In the second class of cases the defense of non-assumpsit is not available, for the original contract remains un- changed, and the question is merely whether the surety's risk has been unfairly increased by actions of the principal and surety dehors the con- tract. See pp. 420, 421, infra. 17. P. -made a ncte to C. for $1,000, guaranteed &// S., and payable in six months with six per cent, interest. After delivery, C. and P. by agreement struck from, the note the words "six per cent." and substituted the words "four per cent." Is S. dis- charged? This is clearly a case of alteration, and indeed of physical altera- tion on the face of the instrument. S. never guaranteed a four per cent, note, yet the change can by no possibility injure him. and works, in fact,' an actual decrease of his liability. The cases are irreconcilable. In Cambridge Savings Bank v. Hyde. 131 Ma 77, where a similar change was made by indorsement on the back of a note, the court held that such indorsement constituted a mere collateral agreement, which could not hurt the surety, and there- fore did not discharge him, but distinguished the case from one where the change wa? made on the face of the note by erasure or interlineation, which destroyed the identity of the contract. 420 QUESTIONS AND ANSWERS. Morton, J., said : " Where the act of which the surety complains is a new agreement, changing some of the terms of the original agreement, we think the true rule is that, if such new agreement is. or may be injurious to the surety, or if it amounts to a substitu- tion of the new agreement for the old, so as to discharge and put an end to the latter, the surety is discharged. But if the change in the original contract from its nature is beneficial to the surety, or if it is self-evident that it cannot prejudice him, the surety is not discharged." The weight of authority seems, however un- fortunately, to be opposed to this view, and to hold that the surety is entitled to stand on the strict letter of the contract and to decline to be bound if any alteration is made even though there is no erasure. Antisdel v. Williamson, 165 X. Y. 372 ; Weir Plow Co. v. Walmsley, 110 Ind. 242; Driscoll v. Winters, 122 Cal. 65. In cases of erasure or other physical change in the face of an in- strument, made with the creditor's consent, the weight of authority holds the surety discharged, irrespective of any fraudulent intent on the part of the creditor. Hewins v. Cargill, 67 Me. 554; Coburn v. Webb, 56 Ind. 96; Wood v. Steele, 6 Wall. (U. S.) 80, (where the change was made by the principal debtor without creditor's knowledge). The rule, however, has been relaxed by some courts where the alteration was made innocently. Milbery v. Storer, 75 Me. 69. The strictness of the rule as to erasure is doubtless connected with the " technical common-law principle that the obligation of a specialty has no existence apart from the document itself." 16 Harv. Law Rev. 512. It is also based on considerations of policy which forbid a man* who has been guilty of spoliation to produce the mutilated document as evidence of his right. " To prevent and punish such tampering, the law does not permit the plaintiff to fall back upon the contract as it was originally. In pursuance of a stern but wise policy, it annuls the instrument as to the party sought to be wronged." Swayne, J., in Woodv. Steele, 6 Wall. (U. S.) 80. Of course this argument fails of its reason where the era- sure or interlineation has taken place by accident or by the act of a stranger. In such case, according to the better view, the actual contract between the parties is unaltered and its proof is not pre- vented by such damage to the written evidence of it. The true contract may be shown. Anderson v. Bellenger, 87 Ala. 334; U. S. v. Spaulding, 3 Mason (U. S.), 478; 1 Greenl. Ev., 566. * 18. P. was employed by C. as "bookkeeper, and S. executed a fidelity bond for him in that capacity. Subsequently P., whi 7 ? retaining his position as C.'s bookkeeper, became his cashier also. P. thereafter embezzled certain money of C., and concealed it by false entries as bookkeeper. C. now sues S. on the fidelity bond to recover the amount of P's embezzlement. Is S. liable? Xo. Kellog v. Scott, 58 X. J. Eq. 344. The court held that the term's of the fidelity bond, while not covering employment as SURETYSHIP. 421 cashier, were broad enough to make S. liable for "abstractions either by the bookkeeper himself in any capacity, or by another, if the abstractions were intentionally concealed from the employer' by means of the false entries made by the bookkeeper." Nevertheless, P.'s added duties as cashier created " a material change by act of the parties without knowledge of the surety, in the nature of the duties of the employee, and it was a change that materially altered the duties of the employment, so as to affect the peril of the* surety," and therefore he was discharged. It is noteworthy that this is not a case of alteration or modification of the original contract; the decision rests purely on the ground that circumstances attended the execution of the contract not fairly to have been contemplated by the surety. It is a case of variation of risk. Similar reasons underlie the case referred to supra, p. 417, where the surety on a building contract is held discharged when the employer pays the builder an instalment of the price before, under the contract, it has been earned. General Steam Navig. Co. v. Rolt, 6 C. B. N. S. 550; see also Dickson v. MacPherson, 3 Grant's Ch. 185. It is to be noted that many so-called cases of alteration and variation in reality involve no question of the law of suretyship, but merely one of interpretation of the surety's contract. For instance, where an offi- cial's bond secured his fidelity in his "said appointment" it was held that a reduction of his salary did not discharge the surety, for the reason that the amount of the salary had never been a term of the surety's contract. Frank v. Edwards, 8 Wels. Hurl. & Gor. 214. So in the frequent cases of sureties on builders' contracts where changes are made in the specifications during progress of the work the true question is usually whether the proper interpretation of the surety's contract makes these specifications a term of his obligation. If so, alteration of- them alters the contract and he is discharged; if not, his liability continues unless there are special circumstances which vary his risk and raise an equity in his favor. See United States v. Freel, 186 U. S. 309 ; reported below in 99 Fed. Rep. 237, and 92 Fed. Rep. 299 ; Fuller Co. v. Doyle, 87 Fed. Rep. 687. A similar question of interpreta- tion is shown in Reese v. United States, 8 Wall. (U. S.) 13. 5. Fraud, Misrepresentation or Concealment of Material Facts. 19. S. was 'surety on a fidelity bond for P., a cashier employed by C. P. became a defaulter and thereupon C. sued S. on the bond. Plea, that since the execution of the bond and prior to such default, P. had been guilty of embezzlement to the knowledge of C., who had nevertheless retained him as cashier upon his mak- ing restitution, but without informing S. of the facts. Demurrer. What judgment? Judgment for S. By continuing P. in the employment after actual knowledge of his dishonesty, C. has released the snretv. " If the dishonesty had existed before the surety became bound, 422 QUESTIONS AND ANSWERS. and the master had concealed it, the surety would not have beeu liable, and the cases are the same in principle. Moreover, upon, discovering the dishonesty, the master had a right to discharge the servant, but by continuing him in the service he lost that right." 1 Brandt, Suretyship (3d ed.), .477. Such cases fall within the general rule that any dealing on the part of a creditor which unfairly burdens the surety or prejudices his remedy will discharge him. They illustrate the peculiar care with which the courts guard the rights of a surety against abuse. An employer is bound to disclose to one who becomes surety to him for an em- ployee any known previous dishonesty of the employee in the service. Third Nat. Bank v. Owen, 101 Mo. 558; see Franklin Bank v. Stevens, 39 Me. 532. He must also reply fully and fairly to the inquiries made by the surety before binding himself. Bank of Monroe v. Anderson Co., 65 Iowa, 692. Also, he must disclose any circumstances peculiarly within his knowledge, with respect to the surety's risk, which make the par- ticular case exceptional. " There may be circumstances known to the party taking a guaranty for another, of so decisive a character that it could not be supposed that if known to the surety he would have en- tered into the obligation, and in such a case the party taking the secu- rity 'cannot withhold the information and enforce the obligation." Andrews. J., in Howe Machine Co. v. Farrington, 82 N. Y. 121. Thia doctrine is not, however, carried so far as to discharge an employee's surety because he is not informed of prior derelictions on the part of the employee of which the employer had no knowledge, even though he was negligent in not finding them out. Bowne v. Mt. Holly Nat. Bank, 45 N. J. Law, 360; Williams v. Lyman, 88 Fed. Rep. 237. Graves v. Lebanon Nat. Bank, 10 Bush (Ky.), contra, 23, does not represent the general law. Nor does his duty to disclose include " circumstances which may indirectly affect the liability of the surety, such as the skill or the want of it; the industry or indolence; the care or negli- gence ; the wealth or poverty of the party for whose faithfulness or responsibility a surety is sought. * * * The effects which result from such personal qualities are matters for which the surety ordinarily assumes the responsibility." Rice, J., in Franklin Bank v. Stevens, 39 Me. 532. That the principal debtor is a gambler need not be dis- closed (Atlas Bank v. Brownell, 9 R. I. 168) ; nor, according to the weight of authority, need the fact that the principal is insolvent. Roper v. Sagamon Lodge No. 6, 91 111. 518; and see Farmers' Bank v. Braden. 145 Pa. St. 473; contra, Small v. Currie, 2 Drewry, 102, semble. It would seem, moreover, that the courts are slow to discharge the sure- ties on an official bond running to the government, even where the discharge would be allowed in the case of a private obligation. See U. S. v. Kirkpatrick, 9 Wheat. (U. S.) 720; 27 Am. & Eng. Eney. (2d ed.) 526. So, in general, where an obligor is so far in default that the obligee has the right to terminate the contract, a guarantor or a surety known SURETYSHIP. 423 to the obligee to be such may insist that the obligee exercise his right terminate the contract, and thus prevent the accumulation of further damages for the surety to pay. Hunt v. Roberts, 45 N. Y. 691; Phil- lips v. Foxall, L. R., 7 Q. B. 666. 20. C. leased a house to P. at an annual rental payable in ad- vance, the lease reciting that the house stood on certain land be- longing to C. At C.'s request S. became P's surety. To an action by C. for rent, S. pleaded that in fact the house encroached one inch on the adjoining lot, which belonged to X. Demurrer. What judgment? Judgment for S. The lease misrepresented a material fact to the prejudice of S. Of course, if C. knew and concurred in this misrepresentation, S. would clearly be discharged. But even if C. was ignorant of the encroachment the result is the same. A surety has a right to rely on the recitals of the principal obligation, Stone v. Compton, 5 Bing. N". C. 142; see Frisch v. Miller, 5 Pa. St. 310. The creditor, by becoming a party to the obliga- tion and requesting S. to do so, indorses such recitals. If he mis- represents any material matter to the surety ta induce him to bind himself, the surety is discharged and the fact that the creditor acted in good faith makes no difference. Willis v. Willis, 17 Sim. 218 ; Molson's Bank v. Tuslay, 8 Ont. 293. In the case supposed, the lease might be rendered valueless if X. chose to maintain ejectment, and the surety did not bargain for this risk. The result might well be different, however, if the suit were for rent for past occupancy. If in fact P. had occupied ihe premises undisturbed for a year, S. would doubtless bo liable to make good that year's rent. Of course, any actual fraud or unfair dealing practiced on the surety by the creditor to induce him to become bound may be set up by him in avoidance of his obligation. Blest v. Brown, 3 Gift. 450. The distinction should be borne in mind between cases of the obligee's actual misrepresentation of a fact and those where he asserts that a certain result will take place, or a certain state of affairs come to pass. If such statements are merely of his expectation, failure to make them good will not discharge the surety. If, on the contrary, they are prom- ises, embodying an essential portion of the performance on the obligee's side, their breach will work the surety's release on the ground of fail- ure of consideration or breach of implied or express condition. Thus neglect by an employer to carry out his expressed intention of regularly auditing an employee's accounts is held not to release the surety on the employee's fidelity bond (Benham v. United Guarantee and Life As- surance Co., 7 Wels. Hurl. & Gor. 744; cf. Emery v. Baltz, 94 N. Y. 408) ; whereas failure to apply a note to discharge a particular obliga- tion as promised does release the surety. Farmers' Bank v. Hathaway, 34 Vt 538 ; see 'Ham v. Greve, 34 Ind. 18. 4.2 -i QUESTIONS AND ANSWERS. 21. C. loaned a sum of money to P., and S. became P.'s surety. If was, however, understood between P. and C. that the money should not be actually advanced, but, instead, a debt of the same amount owed by P. -to C. should be canceled, and this was done. S. was not informed of this. Is he discharged? Yes. Doughty v. Savage, 28 Conn. 146. " One who becomes a surety for another must ordinarily be presumed to do so upon the belief that the transaction between the principal parties is one occurring in the usual course of business of that description, sub- jecting him only to the ordinary risks attending it, and the party to whom he becomes a surety must be presumed to know that such will be his understanding and that he will act upon it unless he is informed that there are extraordinary circumstances affecting the risk." Franklin Bank v. Cooper, 36 Me. 179. An obligee must let the surety know fairly the real nature of the transaction. Such a perversion of it as this subjects the surety to liability under cir- cumstances very different from those attending a bona fide loan where the principal debtor actually receives and controls the money. It is a variation of the surety's risk. In a similar case, the court, in holding the surety discharged, said : "A party giving a guar- antee ought to be informed of any private bargain made between the vendor and vendee of goods which may have the effect of vary- ing the degree of his responsibility." Per Abbott, C. J., in Pid- cock v. Bishop, 3 Barn. & Cress. 605. " The effect of the bargain was to divert a portion of the funds of the vendee from being applied to discharge the debt which he was about to contract. with the plaintiffs, and to render the vendee less able to pay for the iron supplied to him." Per Holroyd, J., id. 22. P. was indebted to C. in the sum of $1,000 and C. agreed to accept P.'s note at six months with interest, provided S. would indorse the note. S. did so at P.'s request, P. falsely representing that the note wcs secured by a mortgage of P.'s house to C. Has S. a defense to a suit by C. on the note? Xo. Eothschild v. Frank, 14 X. Y. App. Div. 399. This is a case of fraud on the surety by the principal debtor, the creditor being innocent. Such fraud forms no defense as against a creditor who has in good faith and for consideration taken the surety's obligation. Western Xew York Life Ins. Co. v. Clinton, 66 X. Y. .326. So if the surety signs an obligation in blank and the prin- cipal fraudulently fills in a greater sum or other terms than those agreed to by the surety, or, in violation of his promise to the surety, fails to get cosureties, these facts do not prejudice an inno- cent creditor. Butler v. United States, 21 Wall. (U. S.) 272; Ward v. Hackett, 30 Minn. 150. A surety in his dealings with the prin- cipal must protect himself and cannot at the creditor's expense avoid the consequences of a failure to do so. SURETYSHIP. 425 Two classes of cases should be noted in this connection. (1) If facts exist sufficient to charge the creditor with constructive notice of the principal's fraud on the surety, or to put him on inquiry, the surety is released. Thus it is held that where in the body of an obligation it is recited that A. and B. are to be sureties, and the obligation is actually executed by A. and X. as sureties, that fact is enough to put the creditor on inquiry and to release the surety. Woodin v. Durfee, 4t! Mich. 424; cf. Dair v. U. S., 16 Wall. (U. S.) 1. (2) If, after the surety has signed, the obligation is altered by the principal or by a stranger, the surety is, of course, not liable on the altered contract, and may defend under a plea of non-assumpsit. Wood v Steele, 6 Wall. (U. S.) 80; supra, p. 419. i 6. Notice of Bevocation or Death of Surety. 23. S. promised C. that if he- would from time to time make advances to P. as P. asked for them during the ensuing year, S. would guarantee their repayment up to $10,000. After $5,000 has been so advanced, S. notified C. that he would not guarantee any further advances. What are the rights of the parties? The notice frees S. from liability for further advances. His promise to C. was merely an offer for a unilateral contract, and was unsupported by consideration. Upon C.'s actually making ad- vances and giving notice of them, p. 402, supra, it became a com- pleted contract binding upon S. to the extent of such advances. As to the balance not yet advanced, however, it still remained a mere offer, subject to revocation at the will of the offerer in accordance with the general principles of contract. Offord v. Davies, 12 C. B. X. S. 748; Jordan v. Dobbins, 122 Mass. 168. In the same, way such an offer is revoked by the death of the offerer. Jordan v. Dobbins, supra. In the case last cited the court said: " Until it is acted upon, it imposes no obligation and creates no liability of the guarantor. After it is acted upon, the sale of the goods upon the credit of the guarantee is the only consideration for the conditional promise of the guarantor to pay for them. It is of the nature of an authority to sell goods upon the credit of the guarantor, rather than of a contract which cannot be rescinded except by mutual consent. Thus such a guarantee is revocable by the guarantor at any time before it is acted upon. * The provision that it shall continue until written notice is given by the guarantor that it shall not apply to future purchases affects the mode in which the guarantor might exercise his right to revoke it, but it cannot* prevent its revocation by his death." 24. In consideration of C.'s appointing P. as his factor for a period of ten years, S. guaranteed to C. that P. would faithfully account for all goods intrusted to him during that time. At the end of a year S. became suspicious of P.'s honesty and gave C. notice to procure another surety, saying that he would no longer 426 QUESTIONS AND ANSWERS. be responsible. Two months later S. died. C. took no steps to pro- cure another surety, and when, five years later, P. failed to account for certain goods, C. sued S.'s executors on the guaranty. Are they liable? Yes. There was a completed contract, whereby, for a consid- eration, S. bound himself for a definite stated period. Such a contract, like any other, cannot be terminated by mere notice, nor is it abrogated by the death of the surety. " The death of an indi- vidual surety does not operate to revoke an engagement on his part in the natura of a continuing guaranty for a specified period of time, and in the event of a default by his principal within that period, the estate of the surety is liable after his death. Where the consideration for a guaranty is* given once for all, the guaranty does not cease upon the death of the guarantor." W. Bartlett, J., in Holthausen v. Kells, 18 N". Y. App. Div. 80; affd., 154 N. Y. 776. A fortiori this is so, if the guaranty binds the guarantor, his "heirs, executors, and administrators." Hecht v. "Weaver, 34 Fed. Eep. 111. As already pointed out, pp. 422, 423, supra, where an obligor is so far in default that his obligee 'may refuse to go on with the contract, the guarantor may by notice require him to do so, and fix the extent of his own liability as of that time. The law is not firmly settled as to. bow far a guarantor's liability is terminated by hns death, or may be terminated by notice in cases where be has made a guaranty indefinite in time and amount, and where the principal is not in default. In Lloyd's v. Harper, 16 Ch. Div. 290, a father guaranteed his son's obligations as a member of Lloyd's Asso- ciation in consideration of his admittance to that body. Thereafter the * father died and his estate was sued on the guaranty. It was held liable. James, L. J., said: " Here the consideration is given once for all, just as in the case of the granting a lease in which a third party guaran- tees the payment of the rent and the performance of the covenants. * * * If the testator could at any time have determined the guar- anty he could have determined it the next day. The moment the son was admitted' to the status of an underwriting member, if the father was at liberty to say, ' I withdraw the guaranty,' then the guaranty would have been utterly futile and idle. If it could not be determined by him the next day there would be no time at which he could have a power of determining it." In that case the guaranty was indefinite as to amount, and as to time was only limited by the extent of the son'3 life. While the point decided was only as to the effect of the guaran- tor's death, the case may fairly be considered as authority for the prop- osition that a completed contract of guaranty % for which the stipulated consideration has been given is not determinate by notice or by the guarantor's death, even where time and amount are indefinite. On principle it would seem that the law should be so, and that in the absence of contrary provisions, express or implied, in the contract, a guaranty made for consideration should not be deteriuinable by notice SURETYSHIP. 427 or by the guarantor's death merely because the obligation is not limited by fixed bounds of time and amount. Calvert v. Gordon, 3 JMaii. & Ry. 124 ; Balfour v. Grace, 1902, 1 Cb. Div. 733. Nevertheless, it has been intimated by high authority that in the absence of such limits, a guarantor may free himself upon giving reasonable notice to the obligee. Finch, J., in Emery v. Baltz, 94 N. Y. 408; O'Brien, J., in Reilly v. Dodge, 131 'N. Y. 153. In neither of these cases was the point actually decided. Such a doctrine seems just if applied -only to cases where " the consideration is fragmentary, supplied from time to time and, therefore, divisible." Lush, L. J., in Lloyd's v. Harper, supra. The courts, in cases where the obligation is indefinite as to time and amount, will at all events strain to construe the guarantor's promise as a mere offer, revocable until acted on, or to find in the contract an implied term that it shall end upon the guar- antor's death or upon reasonable notice. Coalhart v. Clementson, 5 Q. B. D. 42. In cases where the obligation of a surety is joint with that of the principal or of cosureties the weight of authority holds that the surety's estate is not liable for defaults occurring after his death. Pickersgill v. Lahens, 15 Wall. (U. S.) 140; Davis v. Van Buren, 72 N. Y. 587; contra, Susoug v. Valden, 10 S. C. 247; Hudelson v. Armstrong, 70 Ind, 99. And where a creditor elects to take a joint judgment, instead of a joint and several judgment, against a surety and others, and the surety thereafter dies, hi^ estate is not chargeable. United States v. Price, 9 How. (U. S.) 83. TORTS, I. NATURE AND CLASSIFICATION OF TORTS. 1. What is a tort? A tort is a private or civil wrong or injury arising independent of any contract, for which the appropriate remedy is a common-law action. Clerk & Lind. on Torts (3d ed.)$ p. 1. 2. Give a classification of torts with regard to the rights which they, infringe. ' CLASSIFICATION OF RIGHTS AND TORTS RIGHTS. ABSOLUTE CLife ) Limb V Assault and battery. Body ) PERSONAL SECURITY. . . -{ Health Nuisance. ( Malicious prosecution . Reputation < Libel. I ( Slander. PERSONAL LIBERTY False imprisonment. f f Violations of incidental I rights. | Real { Nuisance . PRIVATE PROPERTY . . . i I Injury by fire. [Trespass. Personal (Trespass. l/ e ' al 1 Conversion. f T>rm, , J Arising from relation of public officers to j Violation of official uo "1 thecommunity 1 duty. RELATIVE -| [ A J*^ 1 g ] Husband Parent Guardian Master { Abduction . PRIVATE-) \ r "(" I- and and . and and -(Enticement, ^relation wife cbild Wftrd servant i Seduction STATUTORY Violation of. Indirect modes of violating different classes of rights. . . . | Fraud an^fdeceit Chase's Notes on Torts, 2 Col. Jur. 144. " AYhere a right exists there must be a corresponding duty to observe that right, and a tort may be spoken of either as a breach of duty or an infringement of a right." Clerk & Lind. on Torts> p. 6. 3. How do torts resemble and differ from contracts? Torts resemble contracts in that'they are private acts. [428] TORTS. 429 Torts differ from contracts by these qualities: that parties jointly committing torts are severally liable, without the right to contribu- tion from each other; that the death of either party, as a rule, destroys the right of action; that persons under personal disabilities to contract are nevertheless liable for their torts. Clerk & Lind. on Torts (2d ed.), 37, 53; Hilliard on Torts (4th ed.), 2;-Spaulding v. Oakes, 42 Yt. 343. It has been held, however, that the rule that there is no con- tribution between tort-feasors only applies in cases where the per- son seeking contribution must be presumed to have known that he was doing an unlawful act. Armstrong Co. v. Clarion Co., 66 Penn. St. 218; Bailey v. Bussing, 28 Conn. 455. 4. How do torts resemble and differ from crimes? Torts resemble crimes in that they infringe the same rights. 3 Shars. Bl. Com. 122. Torts differ from crimes in that the specific wrongful intent, necessary for a crime, is almost never necessary for a tort. A tort is said to be a private wrong, while a crime is a public one; but this distinction, although a correct one, does not prevent the same act from being considered both a tort and a crime, a familiar instance of this being the case of an assault and battery. 3 Shars. Bl. Com. 122. 5. In what cases must the wrongful intent be proved in ac- tions in tort? In malicious prosecution and fraud, an actual intent to injure or deceive must be established. Dietz v. Langfitt, 63 Penn. St. 234, 240; McKown v. Hunter, 30 N. Y. 625, 627; Bowden v. Bowden, 75 111. 143, 147; Hill v. Reif snider, 46 Ind. 555. In libel and slander, the actual intent to injure need not be shown, if the defamatory matter was such as naturally to do injury. Moore v. Stevenson, 27 Conn. 14; Hatch v. Potter, 7 111. 725, 728; Smart v. Blanchard, 42 N. H. 137, 151; Pennington v. Meeks, 46 Mo. 217; Haire v. Wilson, 9 B. & C. 643. 6. A. brings an action in tori, and can show no special dam- age. In what cases could he recover? He could recover at least nominal damages, except in an action for slander or libel where the words were not actionable per se. In that case special damage must be alleged in the declaration anc proved at trial. Ellicottville, etc. v. Buffalo, etc., R. R. Co., ^0 Barb. (K Y.) 644; Allsop v. Allsop, 5 H. & N. 534. 430 QUESTIONS AND ANSWERS. II. TORTS AFFECTING THE PERSON. a. Assault and Battery. 7. At a public meeting A., advancing toward B., told him. that if he said another word he would knock him down. B., fearing the threat, desisted. Was this an assault? There would be an assault here. The condition of silence was one that A. had no right to impose, and if B. refrained from speak- ing, through fear, he would have a right of action. Read v. Coker, 13 C. B. 850, 860. To constitute an assault, there need be no- actual contact. An assault is any lawful physical force, partly or fully put in motion, creating a reasonable apprehension on the part of the pea-son towards whom the action is directed, of im- mediate physical injury. 2 Bishop's Grim. Law (7th ed.), 23. 8. A. pointed a gun at B. The gun was empty, but B~ thought it was loaded. Was A.'s act an assault? Suppose B. knew that the gun was not loaded. Suppose A. said he would shoot, but did not raise his gun? The apparent intention of the assaulting party is the thing to consider in the first case. The force was partly put in motion and caused reasonable fear, and would be an assault. If B. knew that the gun was not loaded, there would not be a reasonable fear, and so no assault. Beach v. Hancock. 27 N. EL 223. Words alone will not constitute an assault, and if A. did not raise the gun there would be no act on which to base an action. Warren v. State, 33 Tex. 517; Smith v. State, 39 Miss. 521. 9. A reached, through a crowd, to strike B., but struck C., by mistake, and only grazed the clothing of B. D., also in the orowd, was negligently jostled. Could B., C., or D. sue for battery ? A battery in general consists in the unpermitted (by the person or by the law) application of force by one man to the person of another, either hostilely without bodily harm, or negligently with bodily harm. Bigelow on Elements of Torts, 101. B., therefore, would have a right of action owing to the hostility. C. also would have a right of action. Pure accident is not gen- erally ground for an action, but if the accident happens during- a wrongful act, the law will not protect the wrongdoer. James, v. Campbell, 5 Car. & P. 372. D. would have no cause of action, unless actually injured by the jostling, as there was no hostility towards him. Cooley on Torts, 162. TORTS. 431 b. Consent. 10. A and B. agree to spar to a finish. A. sues B. for in- juries, and B. pleads volenti non fit injuria. Can A.- recover? If prize fights were illegal in the jurisdiction in which the fight took place the action could be maintained.. Ordinarily consent is a good defense, but the law will ignore it, if the act consented to be illegal. Either A. or B. could, therefore, sue. Cooley on Torts, 162; Bishop on Non-Contr. Law, 196. Bishop objects to the doctrine of consent not being a defense In civil cases, even when the act is illegal. He agrees that In criminal prosecu- tions it should be no defense, but. argues strongly that where a man is suing civilly the breach of the peace is not under consideration, and that the man who has consented should not afterwards recover. Bishop on Non.-Contr. Law, 196. 11. A. sues B., on the ground that B. has seduced her. Is consent a good defense? In the case of seduction, consent is a good defense. The ex- planation of this is historical. At common law, such sexual inter- course was not treated as a crime. In many States this has been changed by statute, and a woman is given a right of action. Ham- ilton "v. Lomax, 26 Barb. (N. Y.) 615. 12. A., being told that he is legally bound to submit to a physi- cal examination, does so. It later appears that he was not so bound. If he sues the examiner for assault, is his consent a good defense ? It would be. Consent given under mistake of law is still con- sent. Force or fear of violence is necessary to give a right of ac- tioh. Latter v. Braddell, 50 L. J. Com. Law (N. S., Part 2), 448 and 166. c. Accident. 18. A., while using a gun in self-defense, accidentally shot B., who was standing by. Can B. 'recover ? B. could not recover, if A. were not negligent. An accident means in law that which is unavoidable by the use of ordinary caution and skill. Morris v. Platt, 32 Conn. 75-80, 84. 14. A., while separating two fighting dogs, struck B., without negligence. A. was under no duty to separate the dogs. Can B. recover? Here A. was doing something that he might equally well have let alone, but the act being lawful, he is not, even in that case, held to extraordinary care. A. is only held to " the kind and degree of care reasonably necessary to the exigency." Brown v. Kendall, b CuBh. (Mass.) 292, 297. 432 QUESTIONS AND ANSWEKS. d. Duress. 15. A. is pushed through B/s window by a third party. Can B. sue A.? Suppose A. breaks the window, on being threatened with physical violence if he does not? A. would not be liable in the first case, but would be in the second. There is no duress, unless physical force is applied. " That is a man's act which he wills to do, exercising a choice between acting and forbearing, and the strongest moral compulsion still leaves freedom of such choice." Clerk & Lind. on Torts (2d ed.), 7. Duress is more of a defense in criminal law. There is sur- prisingly little authority on the subject in torts. e. Self -Defense Short of Endangering Life. 16. A. had threatened to kill B., and had made one attempt to do so. B., knowing of the threat, shot and killed A. the first time he saw him. Was the plea of self-defense good? Previous threats or acts, no matter how violent, will not justify an assault. " To excuse a homicide, the danger of life, or great bodily injury, must either be real, or honestly believed to be so, at the time, and upon sufficient grounds." Hippy v. State, 2 Head (Tenn.), 217; Shorter v. People, 2 N. Y. 193, 197. 17. Counsel for defendant asked court to charge that defend- ant had a right to'strike if he actually believed that the plaintiff was going to strike first. Counsel for plaintiff asked for a charge that defendant had no right to strike unless he was actu- ally in danger. Which charge should be allowed? Neither charge would be correct. The first charge does not state that the belief was reasonable. Shorter v. People, 2 N. Y . ]93, 197, 201; State v. Bryson, Harrigan & Thompson's Cases, 249. The second charge would deprive a man of the right of striking, when he had reasonable grounds to believe that he was in danger. Self-defense would be of no value if a man had to find out ab- solutely whether he was in danger or not. Shorter v. People, 2 N. Y. 193, 201. An impending blow need not be struck to give a right of self- defense; it is sufficient if there is a threatened evil, or one which appears as if it were ready to fall. Shorter v. People, supra. 18. It was argued by counsel that when defendant was at- tacked he should have retreated, rather than have met force, with force. Is the argument sound? No. "\V hen attacked, a man need only retreat to avoid killing his assailant. In other cases he may return blow for blow, and is TORTS. 433 only liable for unnecessary force. State v. Sherman, 16 R. I. 631; Cooley on Torts, p. 165. 19. A. caught B.'s horse by the bridle, without intending to injure B., and B. struck him. Was B. acting in self-defense? Yes. A man has a right to move, as well as to be free from per- sonal violence. B. was justified in endeavoring, to obtain his re- lease, using no more violence than was necessary for that purpose. Howe v. Hawkins, 1 F. & F. 91. 20. A. was assaulted by B., but used excessive force in repelling him, and B. recovered damages for his injuries. A. now sues for B/s assault upon him. Can he recover? New York holds that if one party has already recovered, the other is barred. Elliot v. Brown, 2 Wend. (N. Y.) 497. See Cooley on Torts, 165, criticising New York doctrine. New Hampshire holds that it is the same as if there were two assaults at different times. Vermont supports this view. The assaulted party recovers for the assault and battery first committed upon him, and the assailant recovers for the excess of force used beyond what was necessary for self-defense. Dole v. Erskine, 35 N. H. 503, 510; Cade v. McFarland, 48 Vt. 47. See also Bishop on Non-Contr. Law, 200. f . In Protection of Property Short of Endangering Life. 21. A. entered B.'s land Quietly, and B., without warning him, put him off the land with appropriate force. Would A. have a right of action? Yes. When a man enters quietly, he must be warned before force can be used of any kind, and after a warning, the owner must begin with the least force appropriate. If a man enters with force, however, there is no need of a warning. Green v. Goddard, 2 Salk. 641: Comm. v. Clark, 2 Met. 23; Wall v. Lee, 34 N. Y. 141. g. "Use of Force in Defending Person or Property to an Extent Endangering Human Life. 21a. When may one, in defense of person or property, use means endangering human life? One may justify the killing of a wrongdoer to prevent the com- mission of a felony upon his own person; Shorter v. People, 2 N. Y. 193; or property; 1 Bishop on Criminal Law (7th ed.), 853, 857 : 875: or that of another; 1 Bishop, supra, 877; Regina v. Rose, 15 Cox, C. C. 540; Cooper's case, Croke Car. 544; People v. Cook. 39 Mich. 236: if under the existing circumstances he believes, on reasonable grounds, that that is the only way to prevent it. See Criminal Law, Ques. 4. 28 434 QUESTIONS AND ANSWEES. If he is attacked, however, outside of his own house, he cannot take the life of his assailant unless he has retreated " to a wall or ditch ", provided he can do so in the course of the combat without endangering his own life. State v. Donnelly, 69 Iowa, 705; Stoffer v. State, 15 Ohio St. 47. He may kill without retreating if under the existing circumstances he had reasonable grounds for believing there was imminent danger of great personal injury to himself, and did in fact believe it. Shorter v. People, supra; State v. Don- nelly, supra. In the defense of real or personal estate, it is not permissible, except to prevent a felony, to take human life. The disparity be- tween the wrong and the remedy is too great and if the property cannot be preserved without such extreme measures, it must be yielded up and recourse had to the ordinary processes of law. Commonwealth v. Donahue, 148 Mass. 529; State v. Zellers, 2 Halst. (N. J.) 220; 1 Bishop, supra, 857, 861, 875, 876; Ques. 16-21, supra. But outside of all of these rules stands the case of the defense of the dwelling-house. A man's house is his castle. In its defense he can kill one who attacks it, without retreating, and whether he owns the house or is merely a sojourner therein. Cooper's Case, supra; State v. Patterson, 45 Vt. 308; 1 Bishop, supra, 858, 859, 877. h. Becaption of Personalty. 22. A. has been in peaceable possession, under bona fide claim of title, but the property in fact belongs to B. Has B. a right of forcible recaption? "Where the possession has been peaceable, there is a conflict in authority. England seems to allow force in such a case. Blades v. Higgs, 30 L. J. Cas. Crim. Law (Part 2), 347. Sterling v. Xarden, 51 N. H. 2-17, accord. The American authority, however, tends to the other view. McLeod v. Jones, 105 Mass. 403, 405; Richard- son v. Anthony, 12 Vt. 273; Stephenson v. Little, 10 Mich. 433. It would seem, on principle, that a compromise would be best, allow- ing forcible recaption (1) when the other party was not holding under bona fide claim of right as in case of a purchaser from a thief, with notice ; or (2) when the owner will lose his property, if recaption is not allowed, as where the property is being taken out of the jurisdiction and a legal process will be too late. The law is settled that the rightful owner may retake his goods if he does not have to use force, and may use force if the recaption is immediate. Commonwealth v. Donahue. 148 Mass. 520, and cases above cited. The owner is always liable for excessive force, however. Com- monwealth v. Donahue, ante. TORTS. 435 r 1. Use of Force to Regain Realty. 23. A.'s tenant, on expiration of term, refused to quit. A. put him out by force. Has the tenant a right of action? Three views 'have been taken on this point. 1. The tenant may not only recover for personal injury, but may also maintain trespass quare clausum fregit, against the owner. Hillary v. Gay, 6 Car. & P. 284. 2. The tenant may not maintain trespass quare claitsum, but may maintain trespass for force to person and damages to goods. Newton v. Harland, 1 Man. & Gr. 644. 3. The tenant may maintain an action for assault and battery, but he is not entitled to damages for the expulsion, when he is a tenant at will. Pollen v. Brewer, 7 C. B. Eep. (N. S.) 371. Either the ilrst or the third view must be adopted. The second view is untenable, as the expulsion and entry are parts of the same act. In England the authority is distinctly in favor of the third view. In the United States there is a conflict of authority, but the decisions are tending against the English view, and in favor of the person forcibly ejected. Mosseller v. Deaver, 19 Am. St. Eep. 540, note, 543-547. The American view seems right. Private war ought not to be encouraged as a substitute for legal proceedings. It Is not -advisable to use force, even in States where the English rule is followed, as action will usually be brought for excessive force. But in almost every State there is a summary proceeding, under the Land- lord aucl Tenant Act. which will compel the tenant to appear before a justice and show cause why he should not be put out, and, if the tenant appeals, he has to give security for rent so that the landlord is secure. If a landlord gets into the premises peaceably, there is conflict of au- thority whether he can then use force or not. Cooley on Torts, 322-327. 24. ~\Yhat is a forcible entry? There must be either actual physical force used in and on the premises (the force must be more than technical), or the force must be directed or threatened to be directed against the person of the tenant. Butts v. Voorhees, 13 N. J. Law, 13; Mason v. Powell, 38 X. J. Law, 576. J. Liability of Vendor of Chattels for Injuries to Other Parties Than His Immediate Vendee, but Caused by His Negligence. 25. A., a wholesale druggist, sold belladonna, labeled as dande- lion. After several resales, B. purchased it, and C. used it and was injured. Can C. recover? Yes. Although A. did not contract with C., he owed him a duty, provided that he was of the class of persons who would nat iirally use the article sold. In Thomas v. Winchester, 6 X. \ . 397, 43G QUESTIONS AND ANSWERS. the court seems to limit the decision to the case of " deadly " medicines. See Loop v. Litchfield, 42 N. Y. 351. But this seems weak reasoning. The fact that one medicine is less dangerous than another is no reason for limiting the class of persons to whom the duty of care is due. Clerk & Lind. on Torts (2d ed.), 401; Blood Balm Co. v. Cooper, 83 Ga.. 457; Schubert v. J. E. Clark Co., 51 N. TV. Bep. (Minn.), 1103. In general to enable any one but the first vendee to recover, it must appear: 1. That the defendant sent the article out with a negligent misrepre- sentation as to its nature or fitness. 2. That the plaintiff used the article, relying upon this misrepre- sentation. 3. That plaintiff acted reasonably in so relying. 4. That the plaintiff used the articles in a manner and for a purpose intended by the defendant, or which the defendant ought to have con- templated as probable. 5. That plaintiff, even though not specifically in defendant's mind when he sold the article, was one of the class of persons by whom he intended the article to be used or whom he ought reasonably to have contemplated as likely to use it. 6. That there was no intervening negligence of third persons or con- tributory negligence of the plaintiff breaking the casual connection between the defendant's negligence and plaintiff's damage. Curtin v. Somerset, 140 Penn. St. 70, 77. Compare Losee v. Clute, 51 N. Y. 494; Savings Bk. v. Ward, 100 U. S. 195; Heaven v. Fender, L. R. 11 Q. B. Div. 503. k. Duty of Care on Part of Occupier of Land or Buildings. 1. TOWARDS PERSONS ON HIGHWAY ADJACENT. 26. A. dug a hole in his land, twenty feet from the highway. B. fell into it, having accidentally deviated from the road. Un- der what condition can he recover? On principle B. could recover if the hole was dangerous to a man using ordinary care, the distance from the street not being the test. Xorwich v. Breed, 30 Conn. 535. But perhaps on authority the excavation must substantially adjoin the highway. Hurdcastle v. South Yorkshire E. E. Co., 4 H. &N. 67, 74;'Hounsell v. Smyth, 7 C. B. (X. S.) 731, 742. 2. TOWARDS A TRESPASSER. 26a. A.'s horse trespassed on a railroad track and was in- jured. The engineer was negligent after seeing the horse. Can A. recover? A. should be allowed to recover here. In general, there is no duty to keep land in condition to be trespassed upon. Lary v. Cleveland, etc., E. E. Co., 78 Irfd. 323. TORTS. 437 'And probably there is no duty to warn a trespasser of dangers not readily apparent. Cooley on Torts, 660. But after the presence of the trespasser is known, the owner must take reasonable care. Rockford, etc., R, R. Co. v. Rafferty, 73 111. 57; Fritz v. R. R. Co., 22 Minn. 404; Darling v. Boston, etc., R. R. Co., 121 Mass. 118. There is a conflict of authority as to whether the owner owes any duty to a trespasser, when his presence is not known. The Ohio court would say that a railroad company must use ordinary care in keeping a lookout for trespassers. R. R. Co. v. Smith, 22 Ohio St. 227. Contra, R. R. Co. v. Hummell, 44 Penn. St. 375. See Kay v. Penn. R. R. Co., 65 Penn. St. 269, 275. 3. TOWARDS LICENSEES AND INVITED PERSONS. 27. A., in attending a regular church service, was injured by the defective condition of the grounds. Could he recover? Recovery should be allowed here, as it is proper to treat A. as an invited guest. Davis v. Central Cong. Soc., 129 Mass. 367. Under similar facts an English court held that A. was a mere licensee, and so the defendant was under no duty to keep the premises in order. Southcote v. Stanley, 1 H. & N. 247. The American view seems better, that the occupier of land owes a duty of care to a guest. The general law may be summarized as follows: 1. The occupant is under no duty to have his land In a safe condition for a licensee. Hounsell v. Smyth. 7 C. B. (N. S.) 731, 743; Vanderbeck v. Hendry, 34 N. J. Law, 467, 472. 2. The occupant, after giving permission, owes a duty not to make land more dangerous, without giving notice, especially if dangers are concealed. Gautret v. Egerton, L. R. 2 C. P. 371, 375; Kay v. Penn. R. R. Co., 65 Penn. St 269, 273. 3. The occupant owes a duty to warn licensee of concealed dangers existing at time of permission, and known to occupant. Foulkes v. R. R. Co., 5 C. P. D. 157; Gautret v. Egerton, supra; White v. France, 2 C. P. D. 308. 4. The occupant is not liable for failure to use reasonable care to as- certain whether or not there are any such dangers. Sullivan v. Waters. 14 Ir. C. L. R. 460; Eaton v. Winnie. 20 Mich. 156. 5. The occupant is bound to give the licensee benefit of such knowl- edge as he has, but is not bound to acquire knowledge. Sullivan v. Waters, supra. 6. If the person is present on business or In toe exercise of a legal right the occupier owes a duty to warn him as to all known dangers and those which should have been known. Indermaur v. Dames. 1.. R. 1 C. P. 274: White v. France, I>. R. 2 C. P. D. 308: Carleton v. Franconia Co.. 99 Mass. 216. See also Bigelow on Torts (3d ed.) [Students' er.]), 288-300; Clerk & Lind. on Torts, 420. QUESTIONS AND ANSWERS. 1. Injuries by Animals. 28. A/s menagerie car was wrecked in a railroad accident, and in spite of every effort a lion escaped, and injured B. Can B. recover ? B. could recover here. A man keeps wild animals at his peril, and when injury is done by them, he is liable, even if they have always been gentle before. If the injury is done by a domestic animal, the plaintiff must show that the defendant knew of the tendency of the animal to do the damage. Filburn v. People's, etc., Co., L. R. 25 Q. B. Div. 258. If the scienter is proved, the defendant is liable, irrespective of negligence. Reynolds v. Hussey, 64 N. H. 64; Cooley on Torts, 343. m. Defamation. 29. Define libel, slander, and publication. Libel is defamatory matter addressed to the eye. Slander is defamatory matter addressed to the ear. Addison on Torts (6th Am. ed., Baylies), 168. Slander and libel differ In that: 1. Slander is a civil wrong only, but libel is a criminal wrong as well, as tending to provoke a breach of the peace. Addison on Torts (6th Am. ed., Baylies), 106. 2. Truth is always a defense to a civil suit for libel or slander. Brad- ley v. Heath, 12 Pick. (Mass.) 163; George v. Jennings, 4 Hun (N. Y.), 66; Root v. King, 7 Cow. (X. Y.) 613; Mundy v. Wight, 26 Kan. 173. But at common law, in a criminal suit for libel, the truth is no de- fense. State v. Burnham, 9 N. H. 34; Cooley on Torts, 207. This rule, however, has been changed in many States by statute. See Art 1, 8, N. Y. Constitution. 3. Spoken words, if not actionable per se, are actionable only on proof of special damage; Bassell v. Elmore, 48 N. Y. 561; Terwilliger v. Wands, 17 N. Y. 54; but written words, if libelous, are under some circum- stances actionable per se. Pollard v. Lyon, 91 U. S. 225; Cooley on Torts, 205, 206. Publication formerly meant writing, but now also includes a speaking of the communication. This publication must be to a third person, or in his presence, so that he can understand it. Hail v. Fuller, 2 Hun (N. Y.), 519; Kiene v. Ruff, 1 Iowa, 482; Mielenz v. Quasdorf, 68 id. 726; Miller v. Butler, 6 Gush. (Mass.) 71. There is no action for writing libelous matter to the man himself. Spaits v. Poundstone, 87 Ind. 522, 524; Sheffill v. Van Deusen, 13 Gray (Mass.), 304. But where two persons compose the letter and mail it, the rule is otherwise. Miller v. Butler, 6 Cush. (Mass.) 71. TOHTS. 439 30. What classes of spoken words are actionable per sef Of the five classes of slander, there are four classes which are ac- tionable per se: " Oral slander, as a cause of action, may be divided into five classes, as follows: (1) Words falsely spoken of a person, which impute to the party the commission of some criminal offense, in- volving moral turpitude, for which the party, if the charge be true, may be indicted and punished; (2) words falsely spoken of a person which impute that the party is infected with some contagious dis- ease, where, if the charge is true, it would exclude the party from society; or (3) defamatory words falsely spoken of a person which impute to the party unfitness to perform the duties of an office or employment of profit, or the want of integrity in the discharge of the duties of such an office- or employment; (4) defamatory words falsely spoken of a party which prejudice such party in his or her profession or trade; (5) defamatory words falsely spoken of a person, which, though not in themselves actionable, occasion the party special damage." Clifford, J., in Pollard v. Lyon, 91 U. S. 225, 226. 31. What is necessary to constitute special damage? 1. The damage must occur through the action of a third person, as a result of the defamation. 2. It must be the loss of a temporal benefit of some pecuniary value, which would otherwise have been conferred upon the plain- tiff, even though gratuitously. 3. The defamation must be the cause of the damage in the legal sense. Gough v. Goldsmith, 44 Wis. 262, 264; Shutleff v. Parker, 130 Mass. 293, 297. 4. Quaere. Can an action be maintained for special damage, by reason of false words not defamatory in their nature (as that a man is a Democrat), but spoken to injure, and from which injury arises? It would seem that the action should be allowed. Lynch v. Knight, 9 H. L. C. 577, at p. 600. If there was no intent to injure in such a case, recovery has been refused. Miller v. David, L. R. 9 C. P. 118,126. 32. A. made a defamatory statement in regard to B.,but for i'he express purpose of benefiting him. Can B. recover? Yes. Malice, in its legal sense, has no moral element. It means simply a wrongful act done intentionally, and without any just caui The word is misleading. Addison on Torts (6th ed., Bay- lies). 180; 6 Am. L. R. 593, 609-610. 33 What are ''privileged communications" Privileged communications, in the law of libel and slander are defamatory communications held excusable because made m t 440 QUESTIONS AND ANSWERS. performance of some legal, moral, or social duty, or the legitimate protection of one's business interests, or for other like causes. They axe of two classes: 1. Those absolutely privileged. 2. Those conditionally privileged. In the first class the privilege exists, even though the statements be made with express malice. This includes statements, whether written or oral, made in legislative and judicial proceedings. Garr v Selden, 4 N. Y. 91. But the statement must be pertinent and ma- terial to the issue. Moore v. Bank, 123 N. Y. 420; McLaughlin v. Cowley,'131 Mass. 70; Miner v. Detroit Post, 49 Mich. 358, 364. Moreover, a witness or counsel enjoys this absolute privilege only if he believed the statement to be relevant. Smith v. Howard, 28- Iowa, 51, 55; White v. Carroll, 42 N. Y. 161, 166. The second class includes such statements as those made by an employee to his principal in the line of business duty or those made in response to inquiries regarding the character of a servant. Child v. Affleck, 9 B. & C. 403; Lewis v. Chapman, 16 N. Y. 369; How- land v. Blake Co., 156 Mass. 543. In this class, if actual malice can be proved it does away with the privilege. Addison on Torts (6th ed., Baylies), 181-184; Hamilton v. Eno, 81 N. Y. 116, 125. In case of a candidate for public office, see State v. Balch, 31 Kan. 465. 34. A., the defendant, wrote defamatory statements concerning the plaintiff, B., to X., under circumstances which made the pub- lication of the letter to X. privileged. By mistake the letter was placed in the wrong envelope and sent to Y., who read it. Has B. a cause of action against A. for libel? No. The letter, in its inception, being privileged the legal im- plication of malice is. rebutted, and in the absence of malice in fact on the part of the defendant, the publication to Y., though made through the negligence of the defendant, was privileged also. Tompson v. Dashwood, L. R. 11 Q. B. Div. 43. 35. What is " fair comment " ? Fair comment is, in effect, a plea that the statement is privileged. Clerk & Lind. on Torts (2d ed.), 516, 530. The subjects of fair comment are: 1. Matters per se of interest to the public; fair and true reports of judicial and legislative proceedings. 3. Matters laid open to the public by the voluntary act of the person concerned, such as fair comment and criticism of the acts of public men, public performances or published writings or works of art. Addison on Torts (6th ed., Baylies), 1881; Cooley on Torts, 218. TORTS. 441 n. Malicious Prosecution. 36. What must be proved to sustain an action for malicious prosecution ? To sustain an action for malicious prosecution the plaintiff must prove four things: First, that the defendant instituted or instigated the prosecution. Second, that he did it with malice. Malice means actual malice, and is a question for the jury. They may find its existence from evidence showing lack of probable cause, but are not absolutely bound to do so. Third, that the defendant acted without reasonable or probable cause. Whether probable cause existed or not is a question of law for the court, if the facts are uncontro verted. If the facts are uncer- tain or in dispute, it is a mixed question of law and fact. Farnam v. Feeley, 56 N". Y. 451. Probable cause is defined as a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the per- son accused is guilty of the offense charged. Fourth, that the previous proceeding has terminated, and that the termination was in favor of the defendant therein, who is plain- tiff in the second suit. Cardival v. Smith, 109 Mass. 158; Brown v. Randall, 36 Conn. 56; Fay v. O'Neil, 36 K Y. 11. III. TORTS AFFECTING PERSONAL LIBERTY. a. Imprisonment. 37. B., a tax collector, told C. that he arrested her, knowing tuat she would not pay otherwise. B. had no right to make an arrest. C. paid and sues for false imprisonment ? Can she recover ? Yes. There need be no actual force to constitute imprison- ment; words are sufficient if they in fact impose a restraint upon the person. It is enough if the payment was made under con- straint. Pike v. Hanson, 9 N. H. 491. 38. A. stopped B., on a foot-path, and told him that he could not go in that direction. B. sued for false imprisonment. Could he recover? No. A prison must have some boundaries. Blocking progress in one direction does not constitute imprisonment. Bird v. Jones, 7 Q. B. Rep. 742, 744. b. Arrest Without Warrant. 30 A was arrested without a warrant by B., a policeman, who had reason to believe that A. had been stealing. 442 QUESTIONS AND ANSWEBS. recover in an action of assault? Suppose B. had been a private person ? A. could not recover in an action against the policeman. If he has reasonable grounds to believe that a felony has been committed he may arrest on suspicion merely, though no felony has actually been committed. Had B. been a private person he would only be protected if he could show not only that he had reasonable ground of suspicion, but also that a felony had actually been committed. Burns v. Erben, 40 N. Y. 463; Beckwith v. Philby, 6 B. & C. 635, 638; Addison on Torts ((5th ed., Baylies), 153. Any one may arrest without a warrant to prevent the commission of a felony. Handcock v. Baker, 2 Bos. & Pul. 260. The fact that, in any case, there was time to get a warrant does not take away the right to arrest without one. Cooley on Torts, 174. 40. Suppose, in the question above, A. had actually been com- mitting a misdemeanor? Neither an officer nor a private person can arrest for a past mis- demeanor, without a warrant. Both can arrest for a misdemeanor which is being committed, provided it is also a breach of the peace. If not, no arrest without a warrant is allowed. Booth v. Hanley, 2 Car. & P. 288; 1 Bishop on Criminal Procedure (4th ed.), 167, 169-171. IV. TOETS AFFECTING EEALTY. a. Trespass. 41. A. cuts grass on B.'s land, honestly thinking that he is on his own land. Is his honesty a defense to an action of trespass? No. The cutting was intentional, and the fact that A. did not mean to trespass makes no difference. In such cases a man acts #t his peril. Basely v. Clarkson, 3 Levinz, 37. 42. A.'s cow was loosed by B. and trespassed upon C.'s land, with no fault on A.'s part. Is A. liable? Yes. As B: did not actually drive the cow upon C.'s land, A. would be liable. Noyes v. Colby, 30 N. H. 143, 154. As a general rule the owner is absolutely liable for such injury done by animals which are the subject of ownership, and which are by nature likely to stray, and likely to- do damage while straying, unless he can show that nis neigh oor was bound to fence, and had failed so to do. Addison on Torts (6th ed.. Baylies). 128. If an animal, belonging to a class not likely to do damage, has a pro- pensity to do damage, the general rule is that the owner is liable, after TOBTS. 443 he knows of it. Campbell v. Brown, 19 Penn. St. 359; Kertschacke v. Ludwig, 28 Wis. 430; Brice v. Bauer, 108 N. Y. 428. 43. A. was driving an ox along the highway when it escaped without negligence on his part and did damage to B.'s property. Js A. liable? No. This is the one exception to the absolute liability of owners. There is less chance of damage in such a case, as the animal will be driven off at once. Moreover, the exception is " absolutely neces- sary for the conduct of the ordinary affairs of life." Tillett v. Ward, 10 Q. B. Div. 17. 44. A.'s dog enters B.'s land, and injures B/s crops. Is A. liable? Save by statute, A. would not be liable for the trespass of his dog. Brown v. Giles, 1 Car. & P. 118; Cooley on Torts, 341. The general reasons for this are: 1. The difficulty of restraining dogs. 2. The slightness of damage done. 3. The common usage not to restrain them. 4. The fact that they are not considered the chattels of the owner, so far as to be subjects of larceny. Read v. Edwards, 17 C. B. (X. S.) 245, 260-261, per Willes, J. Dogs are now the subject of larceny by statute in most States. If the dog was known to be accustomed to do a certain kind of damage the owner would probably be liable. Dictum by Nelson, C. J., Brill v. Flagler, 23 Wend. (N. Y.) 354. b. Necessity. 45. A., finding the road blocked by a fallen tree, drove around it, on B.'s land. He could have avoided the trespass by going a mile around. Is he liable? A. would be liable, unless, under all the circumstances, it was rea- sonable to drive on B.'s land. He cannot go on merely for con- venience. Campbell v. Race, 7 Cush. 408, 413. It has been said that where one knows a highway is blocked and there is another way reasonably available to him he must go this way and not trespass on plaintiff's property; and a traveler is not found to remove obstructions, if it would materially delay him. Morey v. Fitzgerald, 56 Vt. 487, 490. 46. A. enters B.'s building and blows it up to prevent the spread of fire ? Is A. liable ? This matter is generally regulated by statute, but even at common law a private person may destroy property to prevent the spread of fire, if the damage to be done by explosives is not disproportionate 444 QUESTIONS AND ANSWEES. to that to be avoided, and if there is reasonable ground for believ- ing that the fire will spread without such destruction. Surocco v. Geary, 3 Cal. 69-73. Entry is also justifiable in case of a fireman, policeman, or sheriff; to build a division fence; or to prevent the spread of contagious- diseases. Seavey v. Preble, 64 Me. 120. An entry to save property from damage by water or fire is also justifiable. Proctor v. Adams, 113 Mass. 376. c. Acting at Peril. Duty of Insuring Safety. 47. A. built a reservoir on his land, and with no negligence on his part, the water escaped and injured B. Can he recover? By the law, as established by Fletcher v. Eylands, he could re- cover. L. R. 1 Exch. 265; s. c., L. R. 3. H. L. 330. Although, in that case, the facts would probably have warranted a finding of neg- ligence, the case was decided on the supposition of no negligence. The case stands for the point that the person who brings on his- land, for his own purpose, anything which will be dangerous if it escapes, must keep it in at his peril and if he does not he must be held liable for any damage which occurs as the natural consequence of its escape. There axe, however, two exceptions to the rule in the English courts. First, where the escape is caused by the act of God, as if the reservoir had been struck by lightning; and, second, where the damage arises from the wrongful act of a third person. Nich- ols v. Marsland, L. R. 2 Ex. Div. 1; Box v. Jubb, L. R. 4 Ex. Div. 76. The argument by which the decision of Fletcher v. Rylands is reached seems hardly tenable. The analogies used are exceptional, or, as in the case of an innkeeper's liability, are based on public policy, and no attention is paid to the opposing analogies. The case also- keeps up the distinction between real and personal property which seems illogical and should be allowed to die a natural death. If dam- age is done to a person, there must be negligence or intent to injure, and why not in case of injury to realty? Austin on Juris. (5th Eng. ed.> 57-58; Clerk & Lind. on Torts, 341. The old maxim, "sic utere tuo tit alienum non laedas," often used to support the case, does not advance the argument very far. After " laedas " is defined the maxim Is of no further use. In the use of property, damage is often done legally. The question is whether a legal right has been infringed. The maxim " determines no right and defines no obligation." Auburn, etc., Flank Road Co. v. Douglass, 9 N. Y. 444, 445-446. See Harv. Law Rev. 13-18. If there is to be any rule in the direction of that advanced by Black- burn, J., it should not be broader than to hold a man liable where he brings anything on his land which is likely to escape, and likely to do damage if it escapes. At present there is a tendency to restrict liability Trhere negligence or intent is absent. TORTS. 445 The rule of Fletcher v. Rylands is followed In Massachusetts and Minnesota, but see Smith v. Faxon, 156 Mass. 589, 597, where the former decisions seem to be overruled in effect New York, New Jersey and New Hampshire repudiate the rule. Losee v. Buchanan, 51 N. Y. 476; Marshall v. Wei wood, 38 N. J. Law, 339, 341; Brown v. Collins, 53 N. H. 442, 44(5. The New Jersey and New Hamp- shire cases are the best answers to the English case. d. Liability for Fire and Explosives. 48. A. set fire to brush on his land, and with no fault on his part, B.'s land was injured. Is A. liable? No. "Where fire is set for lawful purpose, and there is no negli- gence, the defendant is not liable in this country. Bachelder v. Heagan, 18 Me. 32. In England, Fletcher v. Eylands would hold man to absolute liability. 49. A.'s powder-mill blows up, and B. sues for damage. A. proves that he was not negligent. Is that a perfect defense? No. It depends upon the location of the mill whether it con- stitutes a private nuisance or not. A man cannot manufacture gunpowder in all places, however careful he may be, and the jury is to say whether the place was reasonable. If not, A. would be liable absolutely. But if the place was a proper one, B. would have to prove negligence before he could recover. Heeg v. Licht, 80 X. Y. 579. V. TORTS AFFECTING PERSOXALTT. a. Trespass. 50. A.'s horse was tied at a public hitching-post. B. untied the horse to make room for his own. Is B. liable in trespass? Suppose B. had acted by mistake, thinking it was his horse? B. would be liable in both cases. The fact that he had an equal right to the post originally would give him no right to remove A.'s horse. Bruch v. Carter, 32 N". J. Law, 554. Here, as in other cases in trespass, it is a question of what a man has done, not what he in- tended. Hobart v. Hagget, 12 Me. 67. 51. A.'s dog had been worrying B.'s sheep, and B. shot him just after he ran out of the pasture. A. sues in trespass. Judg- ment for >rhom? Judgment would be for A. B. cannot kill for revenge, but only for protection. Wells v. Head, 4 Car. & P. 568. To justify the killing of an animal that must also be the only rea- sonable way to protect the property. Livermore v. Batchelder, 141 Mass. 179. 446 QUESTIONS AND ANSWERS. 52. A.'s cow was trespassing on B.'s land, and B. drove her off with a dog. The cow was injured. Is B. liable? It would depend upon the dog. If it was a proper dog to use for such a purpose, and J3. used proper diligence in recalling him when the cow was driven off, he would not be liable. Clark v. Adams, 18 Vt. 425. b. Conversion. 53. Define conversion. Conversion consists in any unauthorized dealing with the goods of another by one who is actually, or constructively, in possession, whereby any one of three things happens. Either: 1. The nature or quality of the goods is essentially altered. Dench v. Walker, 14 Mass. 499; Clerk & Lind. on Torts (3d ed.), 207. 2. The person having the right of possession is deprived of all substantial use of the goods permanently, or for an indefinite time. Clark v. Hideout, 39 N. H. 238; Spooner v. Holmes, 102 Mass. 503, 506; Spooner v. Manchester, 133 id. 270. 3. The owner is deprived of all substantial use of the goods tem- porarily, or even momentarily, by one acting in denial of the owner's (i. e., the plaintiff's) title to the goods. Bristol v. Burt, 7 Johns. (N. Y.) 254; Perham v. Coney, 117 Mass. 102; (compare Spooner v. Manchester, ante)', M'Combie v. Davies, 6 East, 538; Cooley on Torts, 448. A merely negligent injury is not conversion. Hawkins v. Hoff- man, 6 Hill, 586; Packard v. Getman, 4 Wend. 613; Mulgrave v. Og- den, Cro. Elizabeth, 219. But the fact that a man is acting &ona fide will not help him if he actually exercises dominion over the goods of another. An innocent purchase from a thief is a conversion. Pease v. Smith, 61 N. Y. 477. A man may also be guilt} 7 of a conversion when he is merely acting as the agent of another. Stephens v. Elwall, 4 M. & S. 259. In Baldwin v. Cole, 6 Modern, 212, Holt, C. J., said, that a de- mind and a refusal would alone constitute a conversion, but that has been repeatedly overruled and is not law. Demand and refusal can never be more than evidence of conversion, and not even that if the goods are not actually in the hands of the party of whom they are de- manded. Smith v. Young, 1 Camp. 439. 54. A. converted B.'s goods, and then brought them back to B., uninjured, and offered to return them. B. refused them. Can he still sue for conversion? Suppose B. had accepted them? A right of action once vested could not be taken away by an offer to return. Carpenter v. Ins. Co., 22 Hun (N. Y.), 47. And even if the return had been accepted, B. would still have a right of action and the return would only go in mitigation of damages. Greenfield Bk. v. Leavitt, 17 Pick. '(Mass.) 1. TOKTS. 447 c. Necessity. 55. A., being a passenger in a boat, threw over B.'s qoods to prevent loss of life. Is A. liable for the loss? No. One acting under such circumstances has a good defense Mouse's Case, 12 Coke's Eep. 63; The Gratitudine, Rob. Adm 196 210; Carver on Carriage of Goods by Sea (2d ed.), 15. VI. TRESPASS AB INITIO. a. Trespass Affecting the Person. 56. A. put one of his employees off his premises, using ex- cessive force The jury was charged, that if A. used more force than was necessary, he became a trespasser ab initio. Was this correct ? No. The principle of trespass- ab initio applies only to acts under a special and particular authority given by law, and not to acts which a man may do generally. Esty v. Wilmot, 15 Gray, 168, 170. b. Trespass Affecting Realty. 57. A. entered B.'s land, by express authority, to cut wood. He exceeded his authority, and B. sues him as a trespasser ab initio for the entry, and all the damage done. Judgment for whom? Judgment should be given for A. The doctrine of trespass ab initio only applies when authority is given by law, as where an officer enters to attach property. In such a case the officer must not use the la.w as an instrument of oppression or abuse his authority, but must conform to all the legal regulations, or he has no justifica- tion, even for the entry. But when, as here, there is an express authority or an authority given in fact, even if it has been procured by fraud, a defendant is only liable for the excess. Jewell v. Mahood, 44 N. H. 474; Allen v. Crofoot, 5 Wend. (N. Y.) 506. 58. A., being a guest at B.'s inn, stole B.'s goods. Indict- ment was for entering with intent to steal. Was it good? No. The doctrine of trespass ab initio will not be extended to criminal cases. State v. Moore, 12 N. H. 42, 45-49. 59. A. refused to pay for a meal at a hotel. after eating it. B. sues him as a trespasser on the premises. Can he recover? No. Although A. is held to enter a hotel by the authority of law. and a guest cannot ordinarily be refused admission, still it is held that a, mere nonfeasance is not such a violation of the authority as to make a man a trespasser ab initio. Six Carpenters' Case, 8 Coke's Eep. 146; Eoss v. Philbrick, 39 Me. 29. 448 QUESTIONS AND ANSWERS. c. Trespass Affecting Personalty. 60. A. took B.'s horse lawfully, as an estray, and then used him. Has B. any right of action? Yes. He could sue A. as a trespasser for the use and the orig- inal taking. Although the taking was lawful the subsequent use of the horse was not, and would make A. a trespasser ab initio. Oxley v. Watts, 1 Term Eep. 12. VII. DEFENSE AND JUSTIFICATION. a. Defense That Plaintiff Was a Wrongdoer. 61. A. and B. were racing on the highway, contrary to statute, when A. intentionally ran into B. In an action by B., A. pleads that B. was a wrongdoer, and so is barred. Is the plea good? Suppose A. had simply been negligent? The fact that a man is acting illegally does not give others the right to treat him as an outlaw, and he still has a right not to be intentionally injured. Welch v. Wesson, 6 Gray (Mass.), 505. A. would also be liable for a negligent injury to B., unless B.'s wrongdoing was the proximate cause of the injury. Spofford v. Harlow, 3 Allen, 176. It is only where compliance with the plaintiff's request would involve the affirmance of his wrong as if it were a right, that hia suit will be rejected. Bishop Non.-Contr. Law, 59; McGrath v. Merwin, 112 Mass. 467. But where the wrongdoing of the plaintiff simply brought him into a position where the injury was suffered, And was not otherwise a cause of it, he can recover. White v. Lang, 128 Mass. 598. b. Justification. Defendant Acting in a Judicial Capacity. 62. Complaint that the defendant, acting as a judge, maliciously and contrary to law, decided a case against the plaintiff. Demurrer. Judgment for whom? Even in a malicious and corrupt decision a judge only renders himself liable to impeachment. Pratt v. Gardner, 2 Gush. (Mass.) 63. Except that he is liable for a refusal to grant a writ of habeas corpus, if good cause is shown on the face. It would make a difference, however, whether the case was wrongly decided in a question on the merits or on the jurisdiction. The general result of the authorities may be stated as follows: 1. When a judge, acting within his jurisdiction, is deciding upon the merits of a case, he is not liable for errors in fact or in law. Bradley v. Fisher, 13 Wall (U. S.) 335. 2. When a judge is deciding whether he has jurisdiction or not, he is not liable for mistakes in fact or In law, unless he knew or ought to TORTS. 449 bare known that he had no Jurisdiction. Grove v. Van Duyne, 44 N. J. Law, 654; Cooley on Torts, 173, n. There is, however, considerable conflict of authority aa to the second statement. Some distinction has been made between cases where a Judge acted in excess of jurisdiction, and where there was no Jurisdiction at all, but such a distinction is not tenable. The same distinction has also been made as to the liability of judges of superior and inferior courts, the latter being the more strictly held. There is much conflict of au- thority, but such a distinction has no foundation In principle. Cooley on Torts, 416. An equal protection should be extended to all persons who are called upon to act in a judicial capacity. o. Justification. That Defendant Was an Officer Acting Under Process. 63. // an officer is acting under process, what is necessary to constitute a perfect justification? 1. He must be an officer de jure. Short v. Symms, 150 Mass. 298. 2. He must have in his possession the process he acts upon. Gal- liard v. Laxton, 2 B. & S. 363, 372. 3. He must rollow the directions of the writ or statute under which he proceeds. Ross v. Philbrick, 39 Me. 29; Smith v. Gates, 21 Pick. (Mass.) 55; Sackrider v. McDonald, 10 Johns. (N. Y.) 253. 4. The process must be fair on its face. State v. Weed, 21 N. H. 263, 271. To be fair on its face: (a) The process must issue from a court having legal power to issue process in such cases. (b) The process must be substantially in legal form. (c) The process must contain nothing on its face to notify the officer that it was issued without legal authority. Campbell v. Sher- man, 35 Wis. 103, 109; Cooley on Torts, 460. If all these points exist an officer is protected, even though from outside sources the officer knows that the process is actually void. ooley on Torts, 46; People v. Warren. 5 Hill (N. Y.), 440. This seems best, as such officers should not be allowed to judge in such matters. 64. A. has goods in his possession which are supposed to be- long to B., and C. calls upon a sheriff to attach them, giving him a bond of indemnity. A. threatens to hold the goods with force -saying that they are his. What shall the sheriff do? In some jurisdictions, if A. actually did own the goods, he would foe allowed to defend them by the use of force. Commonwealth v. Kennard. 8 Pick. (Mass.) 133. In such a jurisdiction the sher- iff would be in a difficult position, as he must either act and foe attacked, or refrain from acting and be sued by C., who has 29 450 QUESTIONS AND ANSWERS. given the bond of indemnity. Whether or not force can be used against a sheriff in such a case must depend upon the jurisdiction,, but as a matter of practice certainly it would seem better not to allow force, as a man is not likely to lose his property by having a sheriff take it, and the creditor's bond is always good security. See State v. Downer, 8 Vt. 424; State v. Richardson. 38 N. H. 208. 65. A sheriff acts under a statute which is afterwards held unconstitutional. Is he liable for his acts? He would be held so in most jurisdictions. An unconstitutional law is said to be no law. Campbell v. Sherman, 35 Wis. 103; Kelly v. Bemis, 4 Gray (Mass.), 83. Such a principle is, however, very severe, and may in time be modified so as to hold the action of the officer voidable, not void. See Henke v. McCord, 55 Iowa, 378; Sessums v. Botts, 34 Tex.. 335, 338. If a ministerial officer refuses to act because he thinks that a statute is unconstitutional, he is liable for such refusal, unless the statute is in fact unconstitutional. Clark v. Miller, 54 N. Y. 528. VIII. PEOXIMATE CAUSE. 66. Through the negligence of the A. Co., B.'s goods were delayed in transportation, and while so delayed were damaged by a freshet. But /or the negligence of the A. Co. the goods would not have been where they could be injured. Would the A. Co. be liable for the damage? By the general weight of authority the A. Co. would not be liable. The negligence is 'held not to be the proximate cause of the damage. Denny v. N. Y. C. R. Co., 13 Gray, 481. Much difficulty has been experienced in framing a rule to determine when a cause is proximate. The most widely accepted rule at present, which is applied in the case above, is that a man's act is the proximate cause of those consequences which naturally flow from it. By Pollock: " Natural and probable consequences are those which a person of average competence and knowledge, having the like opportunities of observation, might De expected to foresee as likely to follow." Pollock on Torts (2d ed.), p. 28. This :s not a logical definition, but a guide to common sense, Ib., p. 33. The application of this rule does not require that the damage should have been foreseen in the precise form in which it happened. It is enough that the result was natural. Nor is the causal connection, under the rule, broken by the mere intervention of ordinary natural forces. A man is bound to foresee an ordinary wind or rain. Bevan on Negli- gence, 74 and 83. Another rule for determining liability is that the last human wrong- doer shall be liable. "Wharton on Negligemce (1st ed.), Appendix, p. TORTS. 451 823, and 86-97, 134-145; Condict v. Grand Trunk B. R. Co., 64 N. Y. 600, 604. Still a third rule was advanced in Gilman v. Noyes, 57 N. H. 627, 631, where it was held that a man was liable if ttfie damage would not have happened, " but for " his act. This rule has been justly criticised in that it would make " everybody responsible for every- thing." No rule has yet been framed which will meet all cases, unless it be the rule of Wardlaw, J., in Harrison v. Berkley, 1 Strobh. L. (the subject-matter of the trust), is a chose in action? For example, suppose A/s agent, B., makes a contract for A., but in his own name, and then sells the contract to C., who has no notice of the agency. Can A. set up his right against C.? The decisions are irreconcilable. All agree that C. must stand in B.'s shoes, so far as B.'s relations with the other party to the contract go, but the question is whether the " latent equity," which existed in favor of A. against B., binds also the purchaser from B. That it does, see Bush v. Lathrop, 22 1ST. Y. 535; Downer v. Bank, 39 Vt. 25; Cave v. Mackenzie, 46 L. J. Rep. (Ch.) 564, the posi- tion of these courts being that the buyer must take the position of the seller in toto. On the other side is the strong consideration, that B. had full control, legally, and passed to C. by the assign- ment a power of attorney to use his name to sue, and do every other thing incidental to the enjoyment of the subject-matter of the transfer. The doctrine of bona fide purchase ought from this standpoint to protect him. Starr v. Haskins, 26 N. J. Eq. 414; Sleeper v. Chapman, 121 Mass. 404; 1 Harv. Law Rev. 1, 9-12. 25. What is the meaning of " for valuable consideration " and " without notice " ? The former merely means, that the contract of transfer must, be for a valuable consideration (see the section on Contracts, supra), and that a consideration of love and affection, which will support a deed in certain cases, will not be sufficient to cut off the cestui 's right in the property transferred. The reason that the purchaser is not protected, when he takes with actual knowledge or constructive notice of the trust, is his dishonesty in buying under such circumstances. " Constructive notice " means the existence of circumstances, such that the court will presume notice, e. g., the recording of a deed, Us pendens, and the like. See 1 Perry on Trusts, 222, 223; 1 Story Eq. Jur. 400. The question also arises on a sale of stock, or other property stand- Ing in the name of " A. B., Trustee," whether the buyer must inquire as to the trustee's power of disposition under the terms of the trust. It is certain thr.t he nnist. at least, make reasonable inquiry into the facts. Shaw v. Spencer. 100 Mass. 382. 390; Third Bank v. L,ans:e. 51 Md. 138. Probably he must find out at his peril, for the full protection of the cestui ought to be insured. Shaw v. Spencer, supr't, (semble). TRUSTS. 465 b. Transfer of the Equitable Interest by the Cestui. 26. X., the cestui que trust, under a trust of personal property, assigned his interest to Y. Later, X. made a second assignment of it to Z. The latter notified the trustee, however, before Y. did so. Does Y. or Z. prevail? The authorities are in conflict. In some States such an assign- ment is not good as against subsequent assignees, unless the debtor, or -trustee, is notified of the transaction. Bishop v. Holcomb, 10 Conn. 444; Weed v. Boutelle, 56 id. 570. This is based on the so-called " deceit," arising from the failure of the prior assignee to give notice. Centra, taking the more rational position, that the first assignee has the property, and that there is nothing left for the assignor to dispose of to the second assignee, see Thayer v. Daniels, 113 Mass. 129; Williams v. Ingersoll, 89 1ST. Y. 508, 523; 1 Harv. Law Rev. 1. Where the second assignee makes inquiry of the trustee before tfirfing, and is led to purchase, because informed that, so far as the trustee knows, the estate is not incumbered, he has a stronger case; Dearie v. Hall, 3 Russ. 48; Spain v. Hamilton, 1 Wall. 604; but even then it would seem that the reasoning of Thayer v. Daniels (supra), would hold good against his claim. In case the trust is of land, the Invariable rule is that the prior as- signee will prevail. " Equity follows the law." Phillips v. Phillips, 2 De G., F. & J. 208; 1 Perry on Trusts, 438. 27. X., a cestui, assigned his equitable interest to Y., and later released for value all that interest to the trustee, who had, of course, the legal title. The trustee had no notice of the assign- ment to Y. Can he hold the property for himself? Yes. His having the legal title is decisive of the case, accord- ing to the maxim, " Between equal equities the law will prevail." It is like a release for value by a creditor to his debtor after an ;ii=si Mass. 307. In New York and some other States such a beneficiary, though bank- rupt, is entitled as against his creditors to a sufficient income to support him in a condition " suitable to his station in life." Tolles v. Wood, 99 X. Y. 616. On whole subject, see Gray, Restraints on Alienation, 134-277, a. VII. ADMINISTRATION OF A TRUST. a. In General. 33. Give some illustrations to show that, so far as the legal title is concerned, the trustee is the only person recognized as the owner of the property. When the Statute of Limitations has run against a claim, held for the cestui by the trustee, the cestui is also barred, though an infant or under other disability. Wyck v. East India Co., 3 P. Wms. 309; Meeke v. 01pherts,'lOO U. S. 564. The trustee is the one to vote on shares of stock held in trust. Re Jacob Barker, 6 Wend. (N. Y.) 509. He is the one to be assessed for taxes; Latrobe, Trustee, v. Mayor, etc., of Baltimore, 19 Md. 13; and to be sued; e. g., for a nuisance. Schwab v. Cleveland, 28 Hun (N. Y.), 458. 34. What is the duty of the trustee as to care of the trust res, investment, etc.? The trustee is bound only to use "ordinary" care in his man- agement of the property. Where property is given him " to invest," the law lays down a rather narrow limit beyond which he cannot go; some States prohibiting railroad stocks. King v. Talbot, 40 N". Y. 76 (contra, Dickinson, Appellant. 152 Mass. 184). Loans on mere personal security are pcarcelv ever iustifinhle. Yrepland v. Schoonmaker, 16 N. J. Eq. 512, 530; Clark v. Garfield, 8 Allen, 427. In all cases, 4G8 QUESTIONS AND ANSWERS. when it once appears that there has been a breach of trust, the trustee becomes liable for loss from any cause. 1 Perry on Trusts, 444. Temporary deposits in banks have raised similar questions, the set- tlement of which emphasize the delicate nature of the fiduciary rela- tion between the cestui and the trustee. It is held, that a deposit in the trustee's own name, even for a shott time, renders him liable for any loss; In re Arguello, 97 Cal. 196; State T. Greensdale, 106 Ind. 364; that, while a deposit as trustee is proper, it will become a breach of trust if allowed to remain a long time; Cann v. Cann, 33 Week. Rep. 40 (fourteen months); Barney v. Saunders, 16 How. 535, 545 (ten months), since this is practically a loan to the Dank; and that any mingling of the trust property with his personal funds will entail the same liability. 1 Perry on .Trusts, 447, 463. Statutes generally point out what are .proper investments for trustees. 35. Suppose a trust estate is sold by auction. Can the trus- tee bid? No. The fact that each bidder stimulates the competition is off- set by the possibility of collusion. The general principle is that a person acting in a fiduciary capacity must not bring his interest into collision with that of the beneficiary. The former has so much advantage from his position that the law protects him from temptation. Marsh v. Whitmore, 21 Wall. (N. Y.) 178; Fulton v. Whitney, 66 N. Y. 548. "b. Remedies. 36. By what kind of proceeding can a cestui proceed against a delinquent trustee? In general, only by a bill in equity; and this is to be preferred, even if the courts of common law had jurisdiction, on account of its flexibility. 2 Perry on Trusts, 843. An action at law for money had and received will lie, however, <1) where a sum of money has been collected by the trustee and he ac- knowledges that it is held for the cestui. The trustee there practically be- comes a debtor as to that amount. Topham v. Morecraft, 8 E. & B. 072; Boughton v. Flint, 74 N. Y. 476, 481. (2) A fortiori, when a final account is rendered by the trustee. Johnson v. Johnson, 120 Mass. 465. (3) Where the trust is one of money, e. g., where A. puts funds in B.'s hands to pay A.'s creditors. Putnam v. Field, 103 Mass. 556; Phelps T. Conant, 30 Vt. 277. 283. In all these cases, the plaintiff may, of course, proceed by a bill in equity, if he chooses. Hooper v. Holmes, 11 N. J. Eq. 122. 469 37. suppose the trustee is out of the' jurisdiction so inai Ke cannot be served with process? This presents no obstacle to the success of the cestui, provided the trust .res is in the jurisdiction of the court; for, although for- merly the court was powerless in such a case, on account of its decrees being in personam only, it is now enabled, by a statutory extension of the principle that equity will not suffer a trust to fail for lack of a trustee, to appoint a new trustee to carry out the duties of the absent one. Felch v. Hooper, 119 Mass.' 52; Arndt v. Griggs, 134 TJ. S. 316. If the trustee is within the jurisdiction, but the trust res outside, there is no difficulty. It is a case of the normal operation of the rule that equity acts upon the person. The trustee must obey the decree, wherever the property is situated, or be punished for con- tempt of court. Earl of Kildare v. Eustace, 1 Vern. 405, 419; Cole v. Cunningham, 133 U. S. 107, 116. 38. Suppose there is a third person involved in the breach of trust for which relief is sought, e. g., a purchaser, with notice of the trust. What is the proceeding there? Under the general rule, that since the trustee holds the legal title to the trust property the cestui must work out his rights through him, the bill would necessarily allege the refusal or ina- bility of the trustee to bring suit against such purchaser, and then ask a reconveyance from the piirchaser to the cestui himself (or to a new trustee, if the trust were a continuing one). R. R. Co. v. Nolan, 48 K Y. 517. 39. Suppose the cestui prefers not to follow the trust property into the hands of the third party, as, for instance, if trust prop- erty, worth $5.000 has been sold for $6,000. Can the trustee retain the $1,000? Clearly not. The rule is 'strictly applied, that the trustee shall make nothing by the breach of his duty. All profits coming to the trustee from his dealings with the trust res inure to the benefit of the cestui. Perry on Trusts, 427; Barney v. Saunders, 16 How. 535, 542. When the loss is of money, the rule is usually to compute interest at the highest legal rates, and for a loss in speculation or trade, com- pound interest is reckoned. McKnight v. Walsh, 23 N. J. Eq. 136; 2 Story Eq. Jur. 1277, 1278. This is, of course, in case the cestui elect? to sue for the breach of trust, rather than for the original res with the profits it has actually gained. 470 QUESTIONS AND ANSWERS. 40. What rules prevail in equity, in regard to the running of the Statute of Limitations, as between the trustee and the cestui que trust? There is 'a vast mass of more or less conflicting decisions on the subject, but the leading principles seem to be as follows : 1. The statute has no application to express trusts, for the trustee does not hold adversely to the cestui. Perry on Trusts, 863. citing a multitude of cases. But the trust must be clearly established, and a great lapse of time may so affect the proof of its existence and character, that equity will refuse relief. 2 Story Eq. Jur. 1520a, (13th ed.k Prevost v. Gratz, 6 Wheat. (U. S.) 481. 2. Where the trust is constructive (except as in (3), infra), or where law and equity have concurrent jurisdiction, the rule is that equity follows the law; the legal- bar is conclusive. Williams v. McKay, 40 N. J. Eq. 190, 197; Kane v. Bloodgood, 7 Johns. (N. Y.) 90 (a general discussion by Chancellor Kent). 3. If the cause of action has been concealed through a fraud, in- volving moral turpitude, the statute will not run in equity, till the injured party has discovered it or would have done so, if he had exercised proper diligence. Gibbs v. Guild, 9 Q. B. Div. 59; Troup v. Smith, 20 Johns. (N. Y.) 32, 47. This rule has been held to apply, even in cases where a concurrent remedy which had existed at law has been barred. Gibbs v. Guild, supra; Sherwood v. Sutton, 5 Mason, 143. And see 1 Perry on Trusts, 230. 4. An actual repudiation of his duty by a trustee (even in an express trust), brought distinctly to the knowledge of the cestui, vill start the statute. Philippfv. Philippi, 115 tJ. S. 151; Mer- riam v. Hassam. 96 ^lass. 516. PLEADING AND PRACTICE UNDER NEW YORK CODE OF CIVIL PROCEDURE. I. PLEADINGS. a. Summons. 1. What facts are essential to give a court jurisdiction? Jurisdiction is the right to adjudicate, concerning the subject- matter in a given case. "To constitute this, there are three es- sentials : first, the court must have cognizance of the class of cases to which the one to be adjudged belongs; second, the proper par- ties must be present actually, or by service; and third, the matter decided must be in substance and effect, within the issue." Bishop, Code Practice, 116. 2. How< is a civil action in a court of record commenced ? A civil action is commenced by service of a summons. But from the time of the granting of a provisional remedy the court acquires jurisdiction and has control of all the subsequent proceedings. This latter mode of acquiring jurisdiction is, however, conditional and liable to be divested in a case where the jurisdiction is made dependent upon some act to be done after the granting of the provisional remedy. The summons is deemed the mandate of the court. Code Civ. Pro., 416. 3. What are the requisites of a summons in a civil action? The summons must contain the title of the action, specifying the court in which the action is brought, the names of the parties to ihe action, and if it is brought in the Supreme Court, the name of the county in which the plaintiff desires trial, and it must be subscribed by the plaintiff's attorney, who must add to his signature his office address, specifying a place within the State where there is a post-office. If in a city, he must add the street and street number or other suitable designation of the particular locality. There are special requirements in the form of the summons In two classes of cases. 1 In actions, either by the people or by a private person, to re- cover a penalty or forfeiture, given by a statute, if a copy of the com- plaint is not delivered to the defendant with a copy of the summons, NOTE The questions of this chapter are answered on the authority of tneNewYork Code of 1908. [471] 472 QUESTIONS AND ANSWERS. a general reference to the statute must be indorsed upon the oor>v of the summons so delivered in the following form : " According to the provisions of," etc., describing the statute and specifying the section, if different sections thereof impose forfeitures or penalties for different acts. Code Civ. Pro., 1897. People v. O'Neil, 54 Hun (N. Y.), 610. Where the action is brought by a common informer, the summons must be served by an 'officer authorized by law to collect on execution issued out of the same court and such officer must, immediately after service, file it with his certificate of service with the clerk of the court or the magistrate who issued it, as the case requires. Such a summons, once issued, cannot be countermanded by the plaintiff before service. Code Civ. Pro., 1895. 2. In matrimonial actions, except where the summons and a copy of the complaint are personally served upon the defendant, final judgment cannot be entered in favor of plaintiff on defendant's default, unless the copy of the summons served contains legibly written or printed upon the face thereof : "Action to. annul a marriage ;" " action for a divorce ;" or, " action for separation," as the case may be, or words to the same effect. The certificate or affidavit of service must affirm- atively show a compliance with this requirement and set forth a copy of the words so added to the summons. Code Civ. Pro., 1774. A summons may be served either alone or with a copy of the com- plaint, or with a notice stating for what sum judgment will be taken in case of the default of the defendant in appearing and answering. If the action is for a sum certain, and the complaint is not served with the summons, such a notice should always be added to the summons, as it enables the plaintiff, in case of default, to have judgment en- tered by the clerk of the court for the amount specified in the notice. If the summons is served alone, and the defendant does not appear, the claim must be proved in court or before a justice thereof or a ref- eree. Code Civ. Pro., 419, 1212, 1214, 1215. But in order to entitle a plaintiff to take judgment by default, for the amount named in the notice or demanded in the complaint, the cause of action must be for a sum certain or capable of calculation, arising on a contract, express or implied. Code Civ. Pro., 420. The form of a summons is as follows: SUPREME COURT NEW YORK COUNTY : JOHN DOE, Plaintiff, against RICHARD ROE, Defendant. Summons With Notice. To the above-named Defendant: You are hereby summoned to answer the complaint in this action, and to serve a copy of your answer on the plaintiff's attorney withiu PLEADING AND PRACTICE UNDER NEW YORK CODE. 473 twenty days after the service of this summons, exclusive of the day of service, and in case of your failure to appear, or answer, judgment will be taken against you by default for the relief demanded in the com- plaint. Datei March 15, 1908. JOHN S. WOODRUFF, Plaintiffs Attorney. Post-office address and office, No. 45 Broadway, New York city. NOTICE. Take notice, that upon your default to appear or answer the above summons, judgment will be taken against you for the sum of five hundred (500) dollars, with interest from September 5, 1896, and with, costs of this action. JOHN S. WOODRUFF, Plaintiff's Attorney. Code Civ. Pro., 417, 418. 4. What is the necessary procedure in bringing an action against a defendant whose name is unknown in part or in whole? Where the plaintiff is ignorajit of the name or part of the name of a defendant, he may designate that defendant, in the summons; and in any other process or proceeding in the action, by a fictitious, name, or by as much of his name as is known, adding a description, identifying the person intended. Where the plaintiff demands judgment against an unknowji person, he may designate that per- son as unknown, adding a description tending to identify him. When the name, or the remainder of the name, of the person be- comes known, an order must be made by the court, upon such notice and such terms as it prescribes, that the proceedings al- ready taken be deemed amended, by the insertion of the true name, in place of the fictitious name or part of name, or the designation as an unknown person; and that all subsequent proceedings be taken under the true name. Code Civ. Pro., 451. 5. What course should be pursued where a man is made a party of record, but no personal claim is made against him ? Where a personal claim is not made against a defendant, a notice, subscribed by the plaintiff's attorney, setting forth the general ob- ject of the action, a brief description of the property affected by it, if it affects specific real or personal property, and that a personal claim is not made against him, may be served with the summons. If the defendant so served unreasonably defends the action, costs may be awarded against him. Code Civ. Pro., 423. 6. Who may serve a summons? The summons may be served by any person, other than a party to the action, except where it is otherwise specially prescribed by law. Code Civ. Pro., 425. For one such exception, see Code Civ. 474 QUESTIONS AND ANSWERS. Pro., 1895, and Ques. 3 (supra). Personal service of a summons can be made only bj a person eighteen years of age or upwards. Genl. Rules Prac. 18. 7. Draw an affidavit of service of a summons and a copy of complaint. Court. County. JOHN DOE, Plaintiff, against RICHARD ROE. Defendant. > Affidavit of Service of Summons and Complaint. COUNTY OF NEW YORK, ss. : John H. Jones, being duly sworn, says that he is a clerk in the office of James Smith and is twenty-three years of age; and that on the 10th day of April, 1897, at 846 Broadway, borough of Manhattan, city of New York, he served the summons in this ac- tion, a copy whereof is hereto annexed, together with a copy of the complaint therein mentioned, upon R*ichard Roe, the defendant in this action, by delivering copies of the same to such defendant, personally, and leaving the same with him. He further says, that he knew the person served, as aforesaid, to be the person mentioned and described in said summons as the defendant in this action. JOHN H. JONES. Sworn to before me, this llth day of April, 1898. ALFRED M. BLACK, Notary Public (110), 17 ew York County. For the necessary allegations in an affidavit of service of sum- mons and complaint in matrimonial actions, see 124, Bishop, Code Practice, and Genl. Rules Prac. 18. 8. How may a party, leaving the State, provide for tlie service of papers in suits prosecuted against him during his absence? When a resident of the State of full age is about to leave the State, he may execute and file with the clerk of the county where he resides, a written designation of another resident of the State as a person on whom may be served papers for the commencement of a civil proceeding against him during his absence. -Such- designa- tion must be properly acknowledged and accompanied by the written consent of the person designated, also properly acknowledged. The PLEADING. AND PRACTICE UNDER NEW YORK CODE. 4To occupation and residence of both parties must be stated, and such designation remains in force for three years,- if no other period is stated therein, notwithstanding the return to the State of the per- son making it. Service made on the person so' designated has the same effect as though made on the person making the designation (if no period is stated, notwithstanding the return of the person designating to the United States). It may be revoked at any t'ime by either party, and is revoked of necessity by the death or incom- petency of either one of them. Code Civ. Pro., 430. 9. How may service of a summons be made upon a domestic corporation? Personal service of the summons upon a defendant, being a domestic corporation, must be made by deliveting a copy thereof, within the State, as follows: 1. If the action is against the mayor, aldermen, and commonalty of the city of New York, to the mayor, comptroller, or counsel to. the corporation. 2.. If the action is against any other city, to the mayor, treasurer, counsel, attorney, or clerk; or, if the city lacks either of those officers, to the officer performing corresponding functions, under another name. 3. In any other case, -to the president or other head of the cor- poration, the secretary or clerk to the corporation, the cashier, the treasurer, or a director or managing agent. Code Civ. Pro., 431 ; Greater New York Charter, 263. 10. How may service of a summons be made upon a foreign corporation? Personal service of the- summons, upon a defendant, being a foreign corporation, must be made by delivering a copy thereof, within the State, as follows: 1. To the president, vice-president, treasurer, assistant treasurer, secretary, or assistant secretary; or, if the corporation lacks either of those officers, to the officer performing corresponding functions, under another name. 2. To a person designated for the purpose by a writing, under the seal of the corporation, and the signature of its president, vice- president, or other acting head, accompanied with the written con- sent of the person designated, and filed in the office of the Secre- tary of State. The designation must specify a place within the State as the office or residence of the person so designated. 3. If such a designation is not in force, or if neither the person designated, nor an officer specified in the first subdivision of this section, can be found with due diligence, and the corporation has property within the State, or the cause of action arose therein ; to the cashier, a director, or a managing agent of the corporation within the State. Code Civ. Pro., 435. 476 QUESTIONS AND ANSWERS. 11. What substitutes are-there for personal service of a summons? (1) Substituted service. Where a summons is issued in any court of record, an order for its service upon a resident defendant may be made upon proof by affidavit of a person not a party to the action or by the return of the sheriff of the county where the defendant resides, that diligent effort has been made to serve the summons on the defendant, and that the place of his sojourn can- not be ascertained, or, if he is within the State, that he avoids ser- vice, so that personal service cannot be made. In such a case, the order must direct service of the summons by leaving a copy thereof, and of the order at the residence of the defendant, with a person of proper age; or if admittance cannot be obtained nor such per- son found to receive it, by affixing the same to the defendant's door and by depositing another copy thereof in the post-office of the place where the defendant resides, postpaid, addressed to him at his residence; or, upon proof that no such residence can be found, service of the summons may be made in such manner as the court may direct. Service must be made and the order and affidavits filed within ten days after the order is granted ; otherwise the order becomes inoperative. On the filing of an affidavit showing service according to the order, the summons is deemed served. Code Civ, Pro., 435-437. This order may be granted by the court or a judge thereof. ( 2 ) Service by pub lica tion or w itli out th e State. An order for such service may be made in the cases specified in section 438 of the Code of Civil Procedure. The most usual cases are those where the de- fendant is not a resident of the State, or is a foreign corporation; and those where he has left the State or concealed himself -therein with intent to defraud his creditors or to avoid service. The order must 6e founded on a verified complaint stating a cause of action, and on affidavits proving the facts required by sections 438 and 43> of the Code. The order must direct that the summons be published in two newspapers designated by the judge at least once a week for six successive weeks, accompanied by a notice in the following form: " To : The foregoing summons is served upon you, by publication, pursuant to an order of " (naming the judge and his official title) "dated the day of 19 , and filed with the complaint, in the office of the clerk of at The order must also direct service of the summons, complaint, and a copy of the order on the defendant personally without the State, at the plaintiff's option, instead of publication, in which case a notice must be served with the summons similar to the above save that the words " without the State of New York " must be sub- stituted for the words " by publication." The order must also con- tain a direction that, on or before the day of first publication, the deposit in a specified post-office one or more sets of the PLEADING AND FIJACTICE UNDER XEW YORK CODE. 477 summons, complaint, and order, postpaid and directed to the de- fendant at a place therein 'specified; or else a statement that the judge, being satisfied by the affidavits upon which the order was granted, that the plaintiff cannot, with reasonable diligence, as- certain a place or places, where the defendant would probably re- ceive matter transmitted through the post-office, dispenses with the deposit of any papers therein. The summons, complaint order, and papers upon which the order was granted must be filed with the clerk before the service or first publication ; and service must be made without the State, or publi- cation begun, as the case may be, within three months after the order is granted. For detailed provisions, see Code Civ. Pro., 435-445. See also Bishop, Code Practice, 130. b. Complaint. 12. What is the first pleading on Hie part of the plaintiff, and what must it contain? The plaintiff's first pleading is the complaint, and it must con- tain: 1. The title of. the action, specif ying the name of the court in which it is brought; if it i? brought in the Supreme Court, the name of the county which the plaintiff designates as the place of trial, and the names of all the parties to .the action, plaintiff and defendant. 2. A plain and concise statement of the -facts- constituting each cause of action, without unnecessary repetition. 3. A demand of the judgment to which the plaintiff supposes himself entitled. Code Civ. Pro., 478, 481. 13. How many, and what causes of action, may le joined in the same complaint? The complaint may set forth two or more causes of action, but the statement of the facts constituting each cause of action must be separate and numbered. The plaintiff may unite two or more of the following causes of action in the same complaint (whether they are legal or equitable) where they are brought to recover : 1. Upon contract, express or implied. 2. Upon personal injuries, except libel, slander, criminal conver- sation or seduction. 3. For libel or slander. 4. For injuries to real property. 5. Real property in ejectment with or without damages for the withholding thereof. 6. For injuries to personal property. 7. Chattels with or without damages for the taking or detention thereof. 478 QUESTIONS AND ANSWERS. 8. Upon claims against a trustee, by virtue of a contract or by operation of law. 9. Upon claims arising out of the same transaction or transac- tions connected with the same subject of action, and not included in one of the above subdivisions. But it must appear on the face of the complaint (1) that all the causes of action so united belong to one of the foregoing subdivi- sions; (2) that they are consistent with each other; (3) that they do "not require different places of trial; -(4) and that, except as otherwise prescribed by law, they affect all the parties to the action. Code Civ. Pro., 483, 484. As to the joinder of causes of action as against an executor or administrator in his representative capacitv with causes of action against him personally, see Code Civ. Pro., J815. c. Verification. 14. Who may verify a pleading? Draw a verification of a com- plaint made by an attorney upon information and belief. The verification must be made by the affidavit of the party, or, if there are two or more parties united in interest, and pleading together, by at least one of them, who is acquainted with the facts, except as follows: 1. Where the party is a domestic corporation, the verification must be mad$ by an officer thereof. 2. Where the people of the State are, or a public officer, in their behalf, is the party, the verification may be made by any person acquainted with the facts. ,3. Where the party is a foreign corporation; or where the party is not within the county where the attorney resides, or if the. latter is not a resident of the State, the county where he has his office, and capable of making the affidavit; or, if there are two or more parties united in interest, and pleading together, where neither of them, acquainted with the facts, is within that county, and capable of making the affidavit ; or where the action or defense is founded upon a written instrument for the payment of money only, which is in the possession of the agent or the attorney; or where all the material allegations of the pleading are within the personal knowl- edge of the agent or the attorney : m either case the verification may be made by the agent of or the attorney for the party. The affidavit of verification must be to the effect, that the plead- ing i? true to the knowledge of the deponent, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true: WLere it is made bv a person, other than the partv, he must set forth, in the affidavit, the grounds of his belief, as to all matters not stated upon his knowledge : and the reason why it is not made by the party. Code Civ. Pro., 525, 526. PLEADING AND PRACTICE UNDER NEW YORK CODE. 479 STATE OF XEW YORK, COUNTY OF ss.. John Jones, being duly sworn, says : I am the attorney for (the plaintiff) above named. I have read and know the contents of the foregoing (complaint) and the same is true of my own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters, I believe it to be true. The source of my information and the grounds of my belief are state- ments made to me by the plaintiff, and an inspection by me of correspondence between the parties to this action relating to the transaction set forth in the complaint. The reason, this (complaint) is verified by me 's that (the plain- tiff) is not within the county where I reside and have iny office. JOHN JONES. Sworn to before me, this loth day of December, 1908. JAMES SMITH, Notary Public, etc. 15. When must a pleading be verified? It is usually not necessary, but should be done if possible, fbr it necessitates the verification of each subsequent pleading, and more- over allows the plaintiff, in certain cases, if the defendant has not appeared, to take judgment by default without application to the court. But the verification may be omitted, even when the complaint was verified, in a case where it is not otherwise specially prescribed by law, where the party pleading would be privileged from testify- ing as a witness concerning an- allegation or denial contained in the pleading. A pleading cannot be used in a criminal prosecution against the party as proof of a fact admitted or alleged therein. A demurrer also need not be verified, nor the general answer of an infant by Ills guardian ad Utem. Code Civ. Pro., 523. And in an action for divorce the answer of the defendant may be made without verifying it. notwithstanding the verification of the com- plaint. Code Civ. Pro.. 175:. But a defense, which does not in- volve the merits of the action, shall not be pleaded unless it is verified. Code Civ. Pro.. 513. After the recovery of a judg- ment against joint debtors as prescribed in section 1932 of the Code, an action mav be maintained against one or more of the joint debtors who were not parties to the original action to procure a judgment charsrinEr their property with any sum remaining un- paid on the original' judgment. In Such an action the complaint must be verified. Code Civ. Pro., 1937, 1938. 480 QUESTIONS AND ANSWERS. d. Notice of Appearance. 16. How must a defendant appear in an action, and what is tlie effect of a voluntary appearance on his part? When the defendant is served with a summons only he must serve a notice of appearance upon the plaintiff's attorney within twenty days after service of the summons is complete, exclusive of the day of service. A notice of appearance entitles him only to notice of the subsequent proceedings, unless within the same time lie demands the service of a copy of the complaint. This demand may be incorporated into the notice of appearance. When he is served with a copy of the complaint he must serve a copy of a demurrer or of an answer upon the plaintiff's attorney, within the same time. Code Civ. Pro., 421, 422, 479. 17. Draw a notice of appearance and demand. SUPREME COURT NEW YORK COUNTY. JOHN DOE, Plaintiff vs.- RICHARD ROE, Defendant. Notice of Appearance and Demand. SIR. Please to take notice, that the defendant, Richard Roe, .appears in this action, and that I am retained as attorney for him therein, and demand that a copy of the complaint and all papers in this action be served on me, at my office, No. 45 William street, Borough of Manhattan, New York city. September 12, 1898. Yours, etc., HEXRY K. JONES, Attorney for Defendant. Office and post-office address, 45 William street, Borough of Man- hattan, New York city. To JAMES E. SMITH, Esq., Plaintiff's Attorney. e. Demurrer. 18. Upon what grounds and when may a defendant demur to a complaint? The defendant may demur to the complaint where one or more of the following objections thereto appear upon the face thereof : 1. That the court has not jurisdiction of the person of the de- fendant. 2. That the court has not jurisdiction of the subject of the action. PLEADING AND PRACTICE UNDER XEW YORK CODE. 481 3. That the plaintiff has not legal capacity to sue. 4. That there is another action pending between the same parties for the same cause. 5. That there is a misjoinder of parties plaintiff. 6. That there is a defect of parties plaintiff or defendant. 7. That causes of action have been improperly united. 8. That the complaint does not state facts sufficient to consti- tute a cause of action. Code Civ. Pro., 488 ; Bishop, Code Prac- tice, 210. Any of the above objections which do not appear on the face of the complaint may be raised by answer. Code Civ. Pro., 498. 19. What must a demurrer specify? The demurrer must distinctly specify the objections to the com- plaint; otherwise it may be disregarded. An objection, taken un- der subdivision first, second, fourth, or eighth above, may be stated in the language of the subdivision ; an objection, taken under either of the other subdivisions, must point out specifically the particular defect relied upon. Code Civ. Pro., 490. An objection under subdivision 2 or 8 is not waived by a failure to demur and may be taken advantage of in the first instance at the trial by a motion to dismiss. Objections made under the other subdivisions are waived unless taken by demurrer or answer as may be appropriate. Code Civ. Pro., 499. 20. Upon what grounds may the plaintiff demur to a counter- claim upon which the defendant demands an affirmative judgment? Upon the following grounds : 1. That the court has not jurisdiction of the subject thereof. 2. That the defendant has not legal capacity to recover on the same. 3. That there is another action pending between the same parties for the same cause. 4. That the counterclaim is not of the character specified in section 501, Code of Civil Procedure. 5. That the counterclaim does not state facts sufficient to consti- tute a cause of action. Code Civ. Pro., 495. 21. Upon what grounds may the defendant demur to a reply? The sole ground of demurrer to a reply, or to a separate traverse to, or avoidance of, a defense or counterclaim contained in the reply, is that it is insufficient in law upon its face. Code Civ. Pro.', 493. f. Answer. 22. What must an answer contain? 1. A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. 31 482 QUESTIONS AND ANSWERS. 2. A statement of any new matter constituting a defense or counterclaim, in ordinary and concise language, without repetition. Code Civ. Pro., 500. 23. What facts may be proved under a denial? All those facts which show the plaintiff's averments to be untrue. Facts which are consistent with their truth, but show no cause of action, are new matter to be pleaded. Dubois v. Hermance, 56 X. Y. 673. 24. A. sued B. on a contract under seal. The answer is a gen- eral denial. Can B. introduce evidence of failure of consideration? No. Consideration is presumed, and proof of failure of consid- eration must be set up affirmatively as a defense. Dubois v. Her- mance, 56 N. Y. 673; Forgotston v. Cragin, 62 N". Y. App. Div. 243. But should the complaint set up a contract made upon a stated consideration, the plaintiff must prove the consideration, and under a general denial the defendant may disprove the plaintiff's allega- tion by showing the want of consideration. 25. What must a partial defense state ? A partial defense must be expressly stated to be a partial defense to the entire complaint, or to one or more separate causes of ac- tion therein set forth. Code Civ. Pro., 508. 26. May a defendant set up more than one defense or counter- claim in his answer? Yes. A defendant may set forth, in his answer, as many de- fenses or counterclaims, or both, as he has, whether they are such as were formerly denominated legal or equitable. Each defense or counterclaim must be separately stated, and numbered. Unless it is interposed as an answer to the entire complaint, it must dis- tinctly refer to the cause of action which it is intended to answer. Code'Civ. Pro., 507; Bishop, Code Practice, 187. The same matter laay constitute both a defense and a counter- claim, and may be pleaded in both ways. Matter occurring after the service of the complaint and before the answer is put in, may also be pleaded. Lansing v. Ensign, 62 How. Pr. 363 ; Heckeman v. Young, 29 St. Rep. 55. 27. A. sued B. on a judgment recovered in this State. B. sets up that the judgment was fraudulent, and a foreign tribunal hav- ing jurisdiction of the person had so adjudged. Is the defense a proper one ? Yes. Equitable defenses include all matters which would au- thorize an application to the Court of Chancery for relief against a legal liability, but which, at law, could not have been pleaded in bar. Dobson V. Pearce, 12 N. Y. 156. PLEADING AND PRACTICE UNDER XEW YORK CODE. 483 28. IVhat is the result where an answer admits part of the plain- Jiff's claim f Where the answer of the defendant, expressly or by not denying, admits a part of the plaintiff's claim to be just, the court, upon the plaintiff's motion, may, in its discretion, order that the action be severed; that a judgment.be entered for the plaintiff for the part so admitted; and if the plaintiff so elects, that the action be con- tinued, with like effect, as to the subsequent proceedings, as if it had been originally brought for the remainder of the claim. Code Civ. Pro., 511. 29. What is a negative pregnant ? A negative pregnant is an evasive answer to an allegation, by answering it literally without answering the substance of it. If, for example, a complaint alleged that plaintiff loaned defendant $100, and the answer denied that the plaintiff loaned the defendant $100, such an answer, though perhaps literally true, would not in substance be a denial at all; for it might still be true that the plaintiff had loaned the defendant $99. He should deny that plaintiff loaned him $100 or any other sum. Salinger v. Lusk, 7 How. Pr. 430; Davison v. Powell, 16 id. 467. 30. What third pleading is open to a defendant besides demur- ring or answering? There is no third pleading possible. A defendant who pleads at all must either demur or answer. Code Civ. Pro., 487. He may also, before demurring or answering, make motions for various kinds 'of relief, as, for example, to set aside service of the sum- mons (if he has not appeared generally), to compel the plaintiff to separately state and number his causes of action, etc. g. Counterclaim. 31. Define a counterclaim, and state when it may le set up? A counterclaim must tend in some way to diminish or defeat the plaintiff's recovery, and it must be one of the following causes of action against the ^plaintiff, or in a proper case against the per- son whom he represents, and in favor of the defendant, or of one or more defendants, between whom and the plaintiff a separate judgment may be had in the action. 1. A cause of action arising cut of the contract or transaction set forth in the complaint, as the foundation of the plaintiff's claim or connected with the subject of v he action : 2. In an action upon contract, any other cause of action on con- tract existing at the commencement of the action. The latter counterclaims, however, are subject to the following rules : 1. If the action is founded upon a contract which has been as- signed by the party thereto, other than a negotiable promissory 484 QUESTIONS AND ANSWERS. note or bill of exchange, a demand existing against the party thereto or an assignee of the contract at the time of the assignment thereof, and belonging to the defendant in good faith before notice of the assignment, must be allowed as a counterclaim to the amount of the plaintiff's demand, if it might have been so allowed against the party or the assignee while the contract belonged to him. 2. If the action is upon a negotiable promissory note or bill of exchange which has been assigned to the plaintiff after it became due, a demand existing against a person who assigned or transferred it after it became due must be allowed as a counterclaim, to the amount of the plaintiff's demand, if it might have been so allowed against the assignor while the note or bill belonged to him. 3. If the plaintiff is a trustee for another, or if the action is in the name of a plaintiff who has no actual interest in the contract upon which it is founded, a demand against the plaintiff shall not be allowed as a counterclaim; but so much of a demand existing against the person whom he represents, or for whose benefit the ac- tion is brought, as will satisfy the plaintiff's demand must be al- lowed as a counterclaim, if it might have been so allowed in an action brought by the person beneficially interested. Code Civ. Pro., 501, 502; Bishop, Code Practice, 195-203. h. Reply. 32. When is a reply necessary? When the answer contains a counterclaim the plaintiff, if he does not demur, may reply to the counterclaim. The reply must contain a general or specific denial of each material allegation of the counterclaim controverted by the plaintiff, or of any knowledge or information thereof sufficient to form a belief, and it may set forth in ordinary and concise language, without repetition, new matter, not inconsistent with the complaint, constituting a defense to the counterclaim. Code Civ. Pro., 514. 33. In what cases and on whose application may the court re- quire a reply to be made? TVhere an answer contains new matter, constituting a defense by way of avoidance, the court may in its discretion, on the defend- ant's application, direct the plaintiff to reply to the new matter. In that case the reply, and the proceedings, upon failure to reply, are subject to the same rules as in the case of a counterclaim. Code Civ. Pro., 516. 34. IVhat matters may the plaintiff join in his reply? A plaintiff may join in the same reply a denial of the counter- claim and new matter, not inconsistent with the complaint, in avoidance of it. 1 Nichols X. Y. Prac. 990. But he cannot set up a new cause of action against defendant by wa} r of reply. Cohn T. Husson, 66 How. Pr. 150. PLEADING AND PRACTICE UNDER XEW YORK CODE. 485 i. General Provisions as to Pleadings. 1. FRIVOLOUS PLEADING. 35. Define a frivolous pleading and a sham defense, and state how each is dealt with. A frivolous pleading is one obviously, and upon its face insuf- ficient as matter of law, and so clearly bad that the defect appears upon a mere inspection, and indicates that it was interposed in bad faith. A sham defense is one so clearly false in fact that it does not in reality involve any matter of substantial litigation. 1 Eum- sey's Practice (2d ed.), pp. 379, 382. If a demurrer, answer or reply is frivolous, the party prejudiced thereby, upon a previous notice to the adverse party, of not less than five days, may apply to the court or to a judge of the court for judgment thereupon, and judgment may be given accordingly. Code Civ. Pro., 537. Upon such a motion the pleading is not stricken out, but what- ever action may be had in respect to it, whether condemned as frivolous or not, it remains a part of the record and makes a part of the judgment-roll. Briggs v. Bergen, 23 X . Y. 162 ; Strong v. Sproul, 53 X. Y. 497. A sham answer or defense may be stricken out by the court on motion, upon such terms as the court deems just. Code Civ. Pro., 538. "A pleading to be stricken out must be false in the sense of being a mere pretense set up in bad faith and without color of fact." Farnsworth v. Halstead, 18 Civ. Pro. Rep. 227, 228. The practice on a motion to strike out an answer as sham is to prepare affidavits and move on notice to defendant's attorney. Op- posing affidavits showing the answer is true in fact, or might be true, and that it was interposed in good faith and not for delay, may be presented by the defendant. Bishop, Code Practice, 224. 36. Can a verified pleading, containing a denial of a material allegation, be stricken out? Xo. A verified pleading, containing a denial of any material allegation of the complaint, though not a general denial, cannot be stricken out, because it raises an issue and gives the defendant the ri^-ht to a trial by jury : and this right is secured by the Constitu- tion, 2, art. I. ' Thompson v. Erie Ry. Co., 45 X. Y. 468 ; Way- land v. Tysen, id. 281. 2. AMENDMENTS. 37. When may pleadings be amended of course f Within twenty days after a pleading, or the answer or demurrer or reply thereto! is served, or at any time before the period for an- swering it expires, the pleading may be once amended by the party, of course, without costs, and without prejudice to the proceedings 486 QUESTIONS AND ANSWERS. already had. But if it is made to appear to the court, that the pleading was amended for the purpose of delay, and that the ad- verse party will thereby lose the benefit of a term,, for which the cause is or may be noticed, the amended pleading may be stricken out, or the pleading may be restored to its original form, and such terms imposed as the court deems just. Code Civ. Pro., 542. In amending, a party may substitute an entirely different cause of action from that originally pleaded. Brown v. Leigh, 49 N. Y. 78. But the amendment must be of the pleading served. He can- not, without application to the court for leave, withdraw a de- murrer and substitute an answer in its place. Cashman v. Rey- nolds, 123 N". Y. 138. Nor can he, without motion, withdraw an answer and serve a demurrer. Finch v. Pindon, 19 Abb. Prac. 96. The fact that either party has noticed the case for trial makes no difference in the right to amend. Ostrander v. Conkey, 20 Hun, 421; Clifton v. Brown, 27 Hun, 231. 38. Must a copy of the amended pleading be served? Yes. Where a pleading is amended, a copy thereof must be served upon the attorney for the adverse party. A failure to de- mur to, or answer, the amended pleading, within twenty days there- after, has the same effect as a like failure to demur to, or answer the original pleading. Code Civ. Pro., 543. 39. In what other way may a pleading be amended? 1. By application to the court before trial for leave to amend. Such application should be made upon notice and affidavits, and may be granted upon such terms as the court sees fit to impose. Code Civ. Pro., 723. 2. By application to the court during the trial because of a vari- ance between the proof and the pleading. Where the variance is not material the court may direct the fact to be found according to the evidence, or may order an immediate amendment, without costs. Code Civ. Pro., 540. But an amendment cannot be allowed upon any application which will change the issue or bring in a new cause of action, subject to this limitation, that the court mav make the pleading conform to the facts proved, and may permit the insertion of material addi- tional allegations. 1 Nichols N. Y. Prac. 1029 ; Smith v. Rathbun, 75 N. Y. 122. 3. In rare cases application to amend may be made after judg- ment and even in the appellate court. Code Civ. Pro., 723; 1 Rumsey's Practice (2d ed.), p. 371. 40. ^Yhat is a material variance between the pleadings and the proof ? It is a variation which actually misleads the adverse party, to his prejudice, in maintaining his action or defense, upon the merits, PLEADING AXD PRACTICE UNDER NEW YORK CODE. 487 and this lie must prove to the court. Code Civ. Pro., 539. In other instances a variance is not fatal. Thus, in an action for goods sold and delivered, the plaintiff would be allowed to amend and show a delivery to a third person by order of the defendant. Rogers v. Verona, 1 Bosw. 417. So also in an action on a contract for services, at a stated rate, the plaintiff could show the value of the services. Sussdorff v. Schmidt, 55 N". Y. 319. 41. What are the functions of supplemental pleadings? Section 544 of the Code of Civil Procedure provides: Upon the application of either party, the court may, and, in a proper case, must, upon such terms as are just, permit him to make a supple- mental complaint, answer or reply, alleging material facts which occurred after his former pleading, or of which he was ignorant when it was made ; including the judgment or decree of a competent ourt, rendered after the commencement of the action, determining the matters in controversy, or a part thereof. The object of a supplemental pleading is to set up facts consist- ent with and in aid of the original pleadings which have occurred or come to the knowledge of the party since the action was begun or the original pleading served. Facts which have occurred since the commencement of the action cannot be proved unless so set up. Tiffany v. Bowerman, 2 Hun, 643; Holyoke v. Adams, 59 N. Y. 233; Hall v. Olney, 65 Barb. 27. II. MOTIONS ON THE PLEADINGS. 42. When is a motion to dismiss on the pleadings made? A motion to dismiss on the pleadings is made after the jury ia sworn and before the case is stated to the jury by the opening coun- sel. A similar motion may also be made, after the case has been opened, on the pleading and opening. 43. What are the usual grounds for such motions? (1) That the complaint does not state facts sufficient to consti- tute a cause of action; (2) that the court is without jurisdiction of the subject-matter; (3) that the answer does not state a defense. Bishop, Code Prac. 424; Eaton v. Wells, 82 N. Y. 576. The objections specified may be taken by demurrer, but they are not waived if not so taken ; Code Civ. Pro., 499 ; and may be raised upon motion at any stage of the case before evidence sup- plying the defect is heard. Abbott, Trial Brief, Civil Issues, 2d ed., p. 77. Scofield v. Whitelegge, 49 N. Y. 259; Sheridan v. Jackson, 72 N. Y. 170. See also Ques. 19 (supra). III. PARTIES. 44. Can an infant be a parti/ plaintiff or defendant? An infant can bring suit by a guardian ad litem who will be ap- pointed by the court, upon the application of the infant if he is 488 QUESTIONS AND ANSWERS. fourteen } T ears of age or upwards ; or, if he is under that age, upon application of his general or testamentary guardian, if he has one, or of a relative or friend. Xotice of the application must be given to the guardian, if there is one, or to the person with whom the infant resides in cases where the application is made by a relative or a friend. Code Civ. Pro., 469-470. An infant must also appear by guardian. Code Civ. Pro., 471. 45. May a married woman bring an action without joining her husband as a party plaintiff? In an action or special proceeding a married woman appears, prosecutes or defends alone or joined with other parties as if she was single. It is not necessary or proper to join her husband with her as a party in any action or special proceeding affecting her separate property, or on account of the wrongful acts of the wife committed without the instigation of her husband. Code Civ. Pro., 450. 46. How must an executor sue and be sued? "An action or special proceeding, hereafter commenced by an ex- ecutor or administrator, upon a cause of action, belonging to him in his representative capacity, or an action or special proceeding, hereafter commenced against him, except where it is brought to charge him personally, must be brought by or against him in his representative capacity. A judgment, in an action hereafter com- menced, recovered against an executor or administrator, without describing him in his representative capacity, cannot be enforced against the property of the decedent, except by the special direction of the court, contained therein." Code Civ. Pro., 1814. 47. Under what circumstances may a party sue or defend as a poor person? A poor person not being of ability to sue, who alleges that he has a cause of action against another person, may apply by petition for leave to prosecute as a poor person, and to have an attorney and counsel assigned to conduct his action. The petition must state : 1. The nature of the action brought or intended to be brought. 2. That the applicant is not worth one hundred dollars besides the wearing apparel and furniture necessary for himself and his family, and the subject-matter of the action. It must be verified by the applicant's affidavit, unless the appli- cant is an infant under the age of fourteen years, and in that case by the affidavit of his guardian appointed in said action, and sup- ported by a certificate of a counselor-at-law to the effect that he has examined the case and is of the opinion that the applicant has a good cause of action. The court to which the petition is presented may. by order, ad- mit him to prosecute as a poor person, and assign to him an at- PLEADING AND PRACTICE UNDER NEW YORK CODE. 489 torney and counsel to prosecute his action, who must act therein without compensation. Code Civ. Pro., 458-460. So also a defendant in an action involving his right or interest in real or personal property may petition in the same manner and enjoy the same privileges. Code Civ. Pro., 463. 48. What is the necessary proceeding where a party, who ought to join as a party plaintiff, refuses to allow his name to be used? All of the parties in interest may be joined in aa action. Those who are united in interest must be joined as plaintiffs or defend- ants, except as otherwise prescribed in the Code. But where a party who ought to be joined as a plaintiff will not consent thereto he may be made a defendant, the reason therefor being stated in the complaint. Code Civ. Pro., 448. 49. A. has a claim upon a contract with X., which he assigns to B. Who should sue for a breach of the contract? The action must be brought in the name of the assignee, he be- ing the real party in interest. But the section expressly provides that an executor or administrator, a trustee of an express trust, or a person expressly authorized by statute may sue without joining with him the person for whose benefit the action is prosecuted ; and a person with whom, or in whose name, a contract is made for the benefit of another, is a trustee of an express trust. Code Cov. Pro., 449. 50. What claims may be assigned? Any claim or demand can be transferred, except in one of the following cases: 1. Where it is to recover damages for a personal injury, or for a breach of promise to marry. 2. Where it is founded upon a grant, which is made void by a statute of the State ; or upon a claim to or interest in real property, a grant of which, by the transferrer, would be void by such a statute. 3. Where a transfer thereof is expressly forbidden by a statute of the State, or of the United States, or would contravene public policy. Code Civ. Pro., 1910. IV. BILLS OF PARTICULARS. 51. What is a bill of particulars? A bill of particulars is a statement, verified or not, depending on the form of the order on which it is granted, apprising either the plaintiff or defendant of the particulars of the charge which he is expected to meet. It cannot be used as a means of discovery of the evidence to be relied upon by the other side. Ball v. Pub. Co., 38 Hun, 11. In case of failure to comply with an order directing a 490 QUESTIONS AND ANSWERS. bill of particulars, the court shall preclude the party in default from giving evidence of the part or parts of his affirmative allega- tion of which particulars have not been delivered. Code Civ. Pro., 531. 52. When may a bill of particulars be granted? " In almost every kind of case in which the defendant can satisfy the court that it is necessary to a fair trial, that he should be ap- prised beforehand of the particulars of the charge which he is ex- pected to meet, the court has authority to compel the adverse party to specify those particulars so far as in his power." Tilton v. Beecher, 59 N. Y. 176, 187. 53. How is a bill of particulars procured? It is customary to ask the attorney for the other side for a bill of particulars ; if he declines, the proceeding is by motion at Special Term, upon notice. The bill of particulars may be verified or not, depending upon whether there is a provision in the order to that effect. V. SUBP(ENA. 54. How is a subpoena served? What are the rights of a ivitness attending upon subpoena? A subpoena is served by showing the original and delivering and leaving with the witness personally a copy. A witness is entitled to fifty cents for each day's attendance, and if he lives more than three miles from place of trial, to eight cents a mile for each mile, going to the place of trial. Code Civ. Pro., 852, 3318. 55. What is a subpoena duces tecum? "A subpoena duces tecum is the proper form of subpoena to com- pel a witness to bring with him and produce on the trial a book or paper in his possession. It differs from the ordinary subpoena only in that it contains a direction to the witness to bring with him the book or document, which must be intelligibly described." It must be served, however, five days before attendance is required. Code Civ. Pro., 867; Bishop, Code Practice, 394. VI. TENDER. 56. What are the Code provisions as to a tender? Where the action is for a sum certain or to recover for involun- tary injury to person or property, the defendant may tender the plaintiff, before trial, such a sum of money as he considers suffi- cient, together with costs. If the money is not accepted, it must be paid into court, and notice in writing of such payment served upon the plaintiff before the trial, and within ten days after the ten- der. If, upon trial, the amount so paid into court proves sufficient PLEADING AND PRACTICE UNDKII XEW YORK CODE. 491 the plaintiff cannot recover costs or interest from the time of ten- der, but must pay the defendant's costs from that time. Code Civ. Pro., 731-733. While tender must be unqualified and unconditional, it may be restricted by such conditions as by the terms of the contract are conditions precedent or concurrent to the payment of the debt Halpin v. Ins. Co., 118 N. Y. 165. VII. OFFER OF JUDGMENT. 57. How is an offer of judgment made? An offer of judgment is made in writing, by service upon the attorney for the plaintiff or defendant, before trial. 58. What must an offer of judgment contain ? It must contain an offer that judgment be taken for a certain sum of money or for other relief therein specified; certain relief in equity or in a foreclosure suit, together with costs to date, and it must be definite in its terms. It must be subscribed by the party in which case it is to be acknowledged; or by the attorney in which case he must annex his affidavit to the effect that he is authorized to make it on behalf of his client. If this offer is accepted a written notice of acceptance is served on the attorney for the offering party within ten days and the clerk must then enter judgment, without notice to the other side, on the filing of the summons, complaint and offer with proof of acceptance. 59. What is the effect of failure to accept an offer of judgment, within ten days? If notice of acceptance is not given, the offer cannot be given in evidence upon the trial ; and if the party to whom the offer was made fails to recover a more favorable judgment he cannot recover costs from the time of the offer, but must pay costs from that time. ode Civ. Pro., 738-740. VIII. TIME. 60. How must the time required by the Code for doing any act in an action or special proceeding brought in a court of record be computed? Such time must be computed by excluding the first day and in- cluding the last day. If the last day is Sunday or a public holiday other than a half holiday it must be excluded. Where the act is required to be done within two days, and an intervening day is Sunday, or a public holiday other than a half holiday, it^must be excluded. Stat. Const. Law, 27. 492 QUESTIONS AND ANSWERS. 61. Can the time fixed by the Code for doing an act be extended ~by the court? The time for serving a pleading or taking any other proceeding in an action after its commencement can, before the expiration of such time, and, except as otherwise prescribed by law, after its expiration be extended beyond the limit allowed by the Code in the court's discretion, except that a court, or a judge, is not authorized to extend the time, fixed by law, within which to commence an action; or to take an appeal; or to apply to continue an action, where a party thereto has died, or has incurred a disability; or the time fixed by the court, within which a supplemental complaint must be made, in order to continue an action; or an action is to abate, unless it is continued by the proper parties. A court, or a judge, cannot allow either of those acts to be done, after the ex- piration of the time fixed by law, or by the order, as the case may be, for doing it ; except that when a party entitled to appeal from a judgment or order, or to move to set aside a final judgment for error in fact, dies before the expiration of the time within which the appeal may be taken, or the motion made, the court may allow the appeal to be taken, or the motion to be made, by the heir, devisee, or personal representative of the decedent, at any time within four months after his death. Code Civ. Pro., 781-785. 62. What notice of motion is required by the Code ? If notice of a motion, or of any other proceeding in an action, before a court or a judge, is necessary, it must, if personally served, be served at least eight days before the time appointed for the hearing, unless the attorneys for the respective parties reside or have their offices in the same city or village, in which case the notice may be five days; or unless the court, or a judge thereof, or a county judge of the county where the action is triable or in which the attorney for the applicant resides, upon an affidavit showing grounds therefor, makes an order to show cause, why the applica- tion should not be granted; and, in the order, directs that service thereof, less than eight days before it is returnable, be sufficient. A copy of the affidavit on which such an order to show cause is granted must be served with the order. , Code Civ. Pro., 780. Genl. Rules Prac. 37. 63. Within what time must the following notices be given: (1) Notice of argument; (2) Notice of taxation of costs; (3) No- tice of trial? 1 Eight days is the regular notice of motion at Special or Trial Term, unless the attorneys for the respective parties reside or have their offices in the same city or village, in which case five day? is sufficient, or unless an order to show cause be granted ; enumerated case? in the Appellate Division, First Department, fifteen rlavg before the beginning of the term (Rule 5 of App. Div. First PLEADING AND PRACTICE UNDER NEW YORK CODE. 493 Dept.) ; appeals from orders, Appellate Division, First Depart- ment, eight days (Eule 4, id.) Genl. Rules Prac. 37, 40. Notice of motion in the City Court is in general four days. For special provisions, see Code Civ. Pro., 3161. 2. Two days' notice of taxation of costs must be given, if the attorneys reside or have offices in the city or town where costs are taxed; otherwise five days' notice must be given. But in the City Court of Xew York, one day's notice is sufficient, if all attorneys reside or have their offices in Xew York city, otherwise two days' notice must be given. Code Civ. Pro., 3263, 3161. 3. Fourteen days' notice of trial before the beginning of the term must be given, unless it is served by mail, when sixteen days' notice before the day of trial is required. Code Civ. Pro., 798, 977. But in City Court of Xew York, five davs onlv is required. Code Civ. Pro., 3161. 64. What are the general provisions of the Code as to the time in which papers are to be served, or notice given, when service is made through the mail? Where it is prescribed in this act, or in the general rules of practice, that a notice must be given, or a paper must be served, within a specified time, before an act is to be done ; or that the ad- Terse party has a specified time, after notice or service, within which io do an act; if sendee is made through the post-office the time so required or allowed is double the time specified; except that ser- vice of notice of trial may be made, through the post-office, not less than sixteen days before the day of trial, including the day of service. Code Civ. Pro., 798. IX. PROVISIONAL REMEDIES. 65. Name the general provisional remedies in an action. The Code declares the general provisional remedies to be five in number viz. : Arrest, injunction, attachment, appointment of a receiver, and deposit, delivery or conveyance of property. a. Arrest. 66. What are the general Code provisions relating to arrest? There are two great classes in which this order will be granted. 1. Where the right to arrest depends upon the nature of the action. 2. Where it depends partly upon extrinsic facts. The first class embraces the following cases : a. To recover a fine or penalty. b. To recover damages for a personal injury : an injury to prop- erty, including, the wrongful taking, detention, or conversion of personal property ; breach of a promise to marry : misconduct or neglect in office, or in a professional employment ; fraud or deceit ; 494 QUESTIONS AND ANSWERS. or to recover a chattel where it is alleged in the complaint that the chattel or a part thereof has been concealed, removed, or disposed of so that it cannot be found or taken by the sheriff, and with intent that it should not be so found or taken, or to deprive the plaintiff of the benefit thereof; or to recover for money received or to re- cover property or damages for the conversion or misapplication of property where it is alleged in the complaint that the money was. received or the property was embezzled or fraudulently misapplied by a public officer or by an attorney, solicitor or counselor, or by an officer or agent of a corporation or banking association in the- course of his employment, or by a factor, agent, broker, or other person in a fiduciary capacity. Where such allegation is made the plaintiff cannot recover, unless he proves the same on the trial of the action; and a judgment for the defendant is not a bar to the new action to recover the money or chattel. c. To recover moneys, funds, or property held or owned by the State, or held or owned officially or otherwise for or in behalf of a public or governmental interest by a municipal or other public corporation, board, officer, custodian, agency, or agent of the State or of a city, county, town, village, or other division, subdivision, department .or portion of the State which the defendant has with- out right obtained, received, converted, or disposed of, or to recover damages for so obtaining, receiving, paying, converting, or dis- posing of the same. d. In an action upon contract, express or implied, other than a promise to marry, where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability, or that he has since the making of the contract, or in contemplation of making of the same, removed or disposed of his property, with intent to defraud his creditors, or is about to re- move or dispose of the same with like intent ; but where such allega- tion is made the plaintiff cannot recover, unless he proves the fraud on the trial of the action ; and a judgment for the defendant is not a bar to a new action to recover upon the contract only. Code Civ. Pro., 549. An order for arrest, under this section, can be granted at any time before final judgment but cannot be granted afterwards. Code Civ. Pro., 551. The second class includes all actions wherein the judgment de- manded requires the performance of an act, the neglect or refusal to perform which would be punishable by the court as a contempt, where the defendant is not a resident of the State, or being a resi- dent, is about to depart therefrom, by reason of which nonresidence or departure there is danger that a judgment or an order requiring the performance of the act will be rendered ineffectual. Code Civ. Pro., 550. This division is intended as a substitute for the writ of ne exeat, which is abolished by section 548 of the Code. An order under it can only be granted by the court, and is always in its discretion, but may be granted or served either before or after PLEADING AND PRACTICE UNDER NEW YORK CODE. 495 final judgment unless an appeal is pending, secured in such man- lier as to stay execution. Code Civ. Pro., 551. One of the chief objects in granting an order of arrest is to pre- vent the judgment which the plaintiff may subsequently recover from being rendered ineffectual, by the court's not having juris- diction over, the person of the defendant. It may be generally stated that in a case where arrest may be obtained because of the nature of the action (class 1, supra), before judgment, execution against the person may be obtained after judgment. In all cases, except those of the second class, the order of arrest must be obtained from a judge of the court in which the action is brought, or from any county judge. Code Civ. Pro., 556. The papers necessary to present to obtain an order of arrest are : (1) Summons, (2) Order of Arrest, (3) Affidavit, (4) Undertak- ing, with two sureties for an amount of not less than $250, and in any case, at least one-tenth of the amount of bail required by the order. A complaint is not necessary, and when served may, if verified, be regarded as an affidavit, but it is better to serve both. Code Civ. Pro., 559 ; Bishop, Code Practice, 234. Where the affidavit is made upon information and belief, the reason must be shown why it was not made on knowledge, and the residence of the informants should be stated with the reasons why their affidavits cannot be obtained. Jordan v. Harrison, 13 Civ. Pro. 447. The affiant should also state the sources of his information and the grounds of his belief. When the affidavit of a third person is needed to use upon the motion, and he will not give it voluntarily, his deposition may be obtained under section 885. But when there is not time to wait for this, an affidavit on information and belief may be used. A woman cannot be arrested on mesne process, except (1) where the order can be granted only by the court; that is, in a case provided for by section 550 (supra) ; and (2) in an action to re- cover damages for " a wilful injury to person, character or prop- erty." Code Civ. Pro., 553. When a defendant has been arrested under an order granted in accordance with the above provisions he may, at any time before he is in contempt, where the order can be granted only by the court, or, in any other case, at any time before execution against his person, must, be discharged from arrest, either upon giving bail, or upon depositing the sum specified in the order of arrest. The defend- ant may give bail, or make the deposit immediately upon hi? arrest, at any hour of the day or night: and he must have reasonable op- portunity to seek for and to procure bail, before being committed to jail. 'Code Civ. Pro., 573. A witness who is in good faith subpoenaed or ordered to attend for examination, where his attendance can be enforced by attach- ment or commitment, is privileged from arrest in a civil action 496 QUESTIONS AND ANSWERS. or special proceeding while going to, returning from and remain- ing at the place of trial. Code Civ. Pro., 860. So also a party to an action and a party enticed into the State. See Bishop, Code Practice, 232. If the defendant offers sufficient bail he must be released: the sheriff has no discretion in the matter. Code Civ. Pro., 573- 576; Arteaga v. Conner, 88 X. Y. 403. 67. IVhat are the qualifications of bail? 1. Each of the bail must be a resident of and a householder or freeholder within the State. 2. Each of them must be worth the sum specified in the order of arrest, exclusive of property exempt from execution; but the judge on justification may allow more than two bail to justify, severally, in sums less than that specified in the order, if the whole justification is equivalent to that of two sufficient bail. Code Civ. Pro., 579. b. Injunction. 68. What are the general Code provisions relating to injunctions? In New York, the old writ of injunction is abolished. A tem- porary injunction may be granted by order. Code Civ. Pro., 602. "An injunction by order is a provisional remedy, and temporary in its character. It assumes a pending litigation in which all ques- tions are to be settled by a judgment, and operates only until the judgment is rendered. If by that a permanent injunction is granted, the temporary one is, of course, ended, and equally so if a permanent injunction is in the end denied." Jackson v. Bunnell, 113 X. Y. 216. If a judgment, which disposes of the action, does not award a permanent injunction, one cannot be subsequently granted upon affidavits. An injunction cannot be obtained as a matter of right; its is- suance depends upon the discretion of the court or judge. The Court of Appeals cannot review the exercise of this discretion, ex- cept where the papers show on their face facts which make an in- junction improper according to settled adjudications. Hudson E. Tel. Co. v. Watervliet, etc., Co., 121 N. Y. 397; McHenry v. Jewett, 90 id. 60. There are two divisions under which all injunctions are classed by the Code. 1. Where the right depends on the nature of the action. 2. "Where the right depends on extrinsic facts. The first division includes all cases where it appears, from the complaint, that the plaintiff demands and is entitled to a judgment against the defendant, restraining the commission or continuance of an act, the commission or continuance of which, during the pendency of the action, would produce injury to the plaintiff. Code Civ. Pro., 603. PLEADING AND PRACTICE UXDER XEW YORK CODE. 497 The second division includes two. classes of acts. (a) Where it appears by affidavit that the defendant during the pendency of the action is doing, procuring, suffering or threatening an act in violation of the plaintiff's rights, respecting the subject of the action, and tending to render judgment ineffectual. Code Civ. Pro., 604, subs. 1. (b) Where it appears by affidavit that the defendant during the pendency of the action is about to remove or dispose of his prop- erty with intent to defraud the plaintiff. Code Civ. Pro., 604, subs. 2. An affidavit includes a verified pleading. Code Civ. Pro., 3343, subd. 11. An injunction order may generally be granted by the court in which the action is brought, or by the judge thereof, or by any county judge; where it is granted by a judge, it may be enforced as the order of court. Code Civ. Pro., 606. In Campbell v. Ernest, 64 Hun (X. Y.), 188, it is held, that the relief provided for by 604, subs. 1, will be granted only in actions involving the rights of the parties to something which constitutes the subject of the action in respect to which the plaintiff claims some rights and seeks some special relief, and that it has no appli- cation to an action where a money judgment only is sought. See also Jerome Co. v. Loeb, 59 How. Pr. 509. The injunction order may be granted to accompany the sum- mons, or at any time after the commencement of the action and before final judgment. Code Civ. Pro., 608. The order may be granted either upon or without notice, except in special instances. The order can be granted only upon notice (1) when directed against a State officer, or board of State officials to restrain the performance of a duty imposed by statute (Code Civ. Pro., 605) ; (2) when it suspends the general and ordinary busi- ness of a corporation or to restrain an officer thereof from the per- formance of his duties (Code Civ. Pro., 1809) ; (3) against the Board of Health of Xew York city (Greater Xew York charter, 1260), and (4) in all cases after the defendant has answered. Code Civ. Pro., 609. This section provides that when notice is given, the. judge may enjoin the defendant until the hearing and decision of the application. Where an order of injunction has been granted ex parte, an ex parte application may be made on the papers on which it was granted, to vacate or modify it, to the judge who granted it, or to the Appellate Division. Such an application cannot be made with- out notice to any other judge except upon proof by affidavit of the disability or absence of the judge who granted the order and that the delay caused by giving notice will expose the applicant to great injury. Code Civ. Pro., 626. As a general rule, a party must make his application on notice. The above section is aimed to meet a case where there is some statutory restriction or some irregularity or insufficiency in the papers. 32 498 QUESTIONS AND ANSWERS. c. Attachment. 1. WHEN GRANTED. 69. What are the general Code provisions relating to attach- ments? A warrant of attachment may be granted against the property of one or more defendants in an action " to recover a sum of money only" as damages for one of the following causes: 1. Breach of contract, express or implied, other than a contract to marry. 2. Wrongful conversion of personal property. 3. An injury to person or property in consequence of negligence,, fraud, or other wrongful act. Code Civ. Pro., 635. To entitle the plaintiff to such a warrant he must show, by affi- davit, to the satisfaction of the judge granting the same, the follow- ing facts : 1. That one of the causes of action specified above exists against the defendant. If the action is to recover damages for breach of contract, the affidavit must show that the plaintiff is entitled to recover a sum stated therein over and above all counterclaims known to him; or 2. That the defendant is either a foreign corporation or not a resident of the State ; or if he is a natural person and a resident of the State, that he has departed therefrom, with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent; or if the defendant is a natural person, or a domestic corporation, that he or it has re- moved, or is about to remove property from the State, with intent to defraud his or its creditors, or has assigned, disposed of or secreted, or is about to assign, dispose of or secrete property, with the like intent; or when, for the purpose of procuring credit, or the extension of credit, the defendant has made a false statement in writing, under his own hand or signature, or under the hand or signature of a duly authorized agent, with his knowledge and ac- quiescence, as to his financial responsibility or standing; or when ' the defendant being an adult and a resident of the State, has been continuously without the United States for more than six months next before the granting of the order of publication of the sum- mons against him, and has not made a designation of a person upon whom to serve a summons in his behalf, or a designation so made, no longer remains in force; or service upon the person so designated, cannot bemade within the State, after diligent effort. Code Civ. Pro., 636. 3. An attachment may also be granted against the property of one or more of the defendants; Where the action is brought to recover money, funds, credits, or other property, held or owned by the State, or held or owned, offi- cially or otherwise, for or in behalf of a public governmental inter- PLEADING AND PRACTICE UNDER NEW YORK CODE. 499 est, by a municipal or other public corporation, board, officer, custodian, agency, or agent, of the State, or if a city, county, town, village, or other division, subdivision, department, or portion of the State, which the defendant has, without right, obtained, received, converted, or disposed of; or in the obtaining, reception, payment, conversion, or disposition of which, without right, he has aided or abetted; or to recover damages for so ob- taining, receiving, paying, converting, or disposing of the same; or the aiding or abetting thereof; or in an action in favor of a private person, or a corporation, brought to recover damages for an injury to personal property, where the liability arose, in whole or in part, in consequence of the false statements of the defendant, as to his responsibility or credit, in writing, under the hand or signature of the defendant, or of his authorized agent, made with his knowl- edge and acquiescence. In order to entitle the plaintiff to a war- rant of attachment, in .1 case specified in th's section, he must show, by affidavit, to the satisfaction of the judge granting it, that a suffi- cient cause of action exists against the defendant, for a sum stated in the affidavit. Code Civ. Pro., 637. The United States statutes for the organization of national banks contain a provision that " no attachment, injunction or exe- cution shall be issued against such association, or its property, before final judgment in any suit, action, or proceeding in any State, county or municipal court," Rev. Stat. TJ. S., 5242. It has been held that an attachment can'not be obtained against the stock of a foreign corporation, under section 647 of the Code, at least where the defendant is not a resident of the State. Plimp- ton v. Bigelow, 93 X. Y. 592. A warrant of attachment is obtained by presenting to a judge an affidavit (which includes a verified pleading, Code Civ. Pro., 3343, subd. 11), a warrant of attachment and a satisfactory bond. It is customary to serve a summons. See Code Civ. Pro., 416, and Ques. 2 (supra). The warrant is subscribed by the attorney, and if the application is granted, by the judge. These papers and copies are given to the sheriff and he attaches the property in the following way : In the case of real property, by filing a notice and description of the property with the county clerk. In the case of personal property, capable of manual delivery including bonds, promissory notes, etc., by taking the same into his actual custody and by serving a copy of the warrant and affidavits upon the pen son from whose possession the property is taken. In the case of other personal property, by leaving a certified copy of warrant and notice showing the property attached, with the person holding the same. If the property attached consists of a simple demand, these papers are left with the person against whom it exists ; if of stock of a corporation, with the president, secretary, cashier, or manag- ing agent thereof; if of an interest in the estate of a decedent, "with the executor or administrator. Code Civ. Pro.. !; 649. The warrant may be granted by a judge of the court, or a county 500 QUESTIONS AND ANSWERS. judge, and may accompany the summons, in which case the sum- mons must be served personally within or without the State or publication be begun within thirty days after the granting of the warrant. The affidavit in this case will state that the plaintiff " is about to commence an action " for the cause stated. Code Civ. Pro., 638; Storber v. Thudium, 44 Hun (X. Y.), 70; Am. Bank Y. Voisin, id. 85. The question of the sufficiency of the affidavit is not, as a rule, gone into when the warrant is granted; this question comes up on motion to vacate the attachment, which is heard at Special Term. See infra. The bond must be for $250, at least, to secure the defendant for costs and damages if the attachment is vacated, and must have two sureties or be /that of a surety company ; and it is no de- fense to an action on this bond, that the court did not have power to grant the attachment for want of jurisdiction or for any other cause. Code Civ. Pro., 642. The plaintiff procuring the warrant must, within ten days after the granting thereof, cause the affidavits, upon which it was granted, to be filed in the office of the clerk. Code Civ. Pro., 639 ; Lewis v. Douglass, 53 Hun (N. Y.), 587. 2. THE AFFIDAVIT. An affidavit which states a mere opinion will not be sufficient, however emphatic its language may be. Where the facts are stated upon information and belief the grounds and sources thereof must be thoroughly explained, and certainly in every case where the affidavit is made upon personal knowledge it will be insufficient, unless it is so drawn that if the facts alleged are not true the affiant may be prosecuted for perjury. In Hoormann v. Climax Cycle Co./9 App. Div. 579, 587, the court said: " The true test of the sufficiency of an affidavit is the possibility of assigning perjury upon it, if false. People ex rel. Cook v. Becker, 20 N. Y. 354. This test is essentially applicable to affi- davits used to secure attachments." The Code does not require, however, that the affiant must have personal knowledge. An affidavit made by the agent or the attor- ney of the attaching creditor, averring that the facts required "to be shown by section 636 of the Code exist, as affiant is in- formed and believes, stating the source of his information and the grounds of his belief, is sufficient to confer jurisdiction on a judge to grant an attachment. ***** jf th e source of infor- mation be a person, it must be by one whom the court can see probably had personal knowledge of the facts communicated, and the means by which the communication is made must be one which experience has shown to be usually reliable, and one which a pru- dent man would employ in a matter of importance to himself.'* Murphy v. Jack, 76 Hun (N. Y.), 356. PLEADING AND PRACTICE UNDER NEW YORK CODE. 501 Thus, information may, it would seem, be derived by cable; Ladenburg v. Com. Bank, 148 N. Y. 202; Reichenback v. Speth- mann, 5 Law Bull. 42. It may be derived by telephone. Murphy v. Jack, 142 N. Y. 215. See also People v. McKane, 143 id. 455, 474. If the information is derived from conversation over the tele- phone, it is essential that the affiant recognize the voice of the plaintiff and that he so state in his affidavit. Murphy v. Jack, 142 X. Y. 215. Even where the affidavit is upon knowledge, the courts in the First Department will hold it insufficient unless fact appear indi- cating that the deponent was in a position to have such knowledge. 1 Rumsey Prac., 2d ed., 631. It is sufficient if the affidavit furnishes evidence from which the judge may be lawfully satisfied of the truth of the matters required to be shown. Lamkin v. Douglass, 27 Hun (N. Y.), 517. 3. JURISDICTION. " Xonresidents, as well as residents, may sue out an attachment, but if the defendant is a foreign corporation, an attachment cannot be obtained by a nonresident or another foreign corporation unless it appears by affidavit that a cause of action exists in favor of the plaintiff for a breach of a contract made within the State, or relating to property situated within the State at the time of the making thereof." (2 Xichols X. Y. Prac. 1383.) An affidavit upon which a warrant of attachment is granted, if sufficient to call upon the court to exercise its discretion, will suffice to give jurisdiction. Van Loon v. Lyons, 61 X. Y. 24; Schoonmaker v. Spencer, 54 id. 366; Murphy v. Jack, supra; Waterbury v. Waterbury, 76 Hun (X 1 . Y.), 51. 4. VACATING OR MODIFYING THE WARRANT. The defendant, or a person who has acquired a lien upon, or in- terest in, his property, after it was attached, may, at any time bo- fore the actual application of the attached property, or the proceeds thereof, to the payment of a judgment recovered in the action, apply to vacate or modify the warrant, or to increase the security given by the plaintiff, or for one or more of those forms of relief, together or in the alternative. Code Civ. Pro., 682. And at any time after appearance by the defendant and before final judgment he may apply to the judge or court who granted the warrant for an order to discharge the attachment, as to the whole or a part of the property attached. Code Civ. Pro., 687. Irregularities in the affidavit on which the warrant of attachment was granted which are not specified in the notice of motion to set aside the attachment, cannot be relied upon in support of the motion. 2 Xichols Prac. 1520. Where the defendant in his affidavit, attached to the notice of motion to vacate, sets forth additional facts, however unimportant, 503 QUESTIONS AND ANSWERS. and does not simply move to vacate upon the >apers on which the warrant was granted, the plaintiff, under section 683, is entitled to put in additional affidavits, tending to sustain any ground for the attachment recited in the warrant. Godfrey v. Godfrey, 75 X. Y. 434; Steuben Co. Bank v. Alberger, id. 179; Kneeland on Attachments, 519. When the application is made on the papers on which the warrant was issued, no additional affidavits can be read in support of the attachment or to defeat it. Buhl v. Ball, 41 Hun (N. Y.), 61; Smith v. Arnold, 33 id. 484; Sutherland v. Bradner, 34 id. 519. The notice of motion must specify any irregularity upon which the motion is based (Genl. Eules Prac. 37), but when it is based on the merits, the notice need specify no special grounds. Walts v. Nichols, 32 Hun (X. Y.), 276. 5. ATTACHMENT OF PARTNERSHIP PROPERTY. Partnership property may be levied upon under an attachment against one partner. Code Civ. Pro., 693 ; Smith v. Orser, 42 N. Y. 132. But partnership choses in action, such as debts due to the firm, cannot be seized. Barry v. Fisher, 8 Abb. Pr. (X. S.) 369. Only the interest of the debtor partner can be seized ; that is, his distributive share on liquidation. Staats v. Bristow, 73 X. Y. 264. The other partners can obtain a release of the goods from the attachment, by giving a bond securing the payment of any judg- ment that may be recovered before the attachment is vacated. Code Civ. Pro., 693, 694. d. Beplevin. 1. NECESSARY PAPERS. 70. What are the general Code provisions relating to replevin? An action of replevin is commenced by the service of a sum- mons. The chattel may, however, be replevied- before the service of the summons, in which case the court acquires jurisdiction as in other provisional remedies. Code Civ. Pro., 1693. See also Ques. 2 (supra). The necessary papers in order to replevy goods are, 1. An affidavit. Code Civ. Pro., 1694. This is ordinarily made by the plaintiff, but it may be made by his agent or attorney, if the material facts are within his personal knowledge: or if the plaintiff is not within the county where the attorney resides or has liis office, or is not capable of making the affidavit. Code Civ. Pro., f 1712. When it is made by his agent or attorney it must state the source of information and the grounds of belief, and the reason why it is not made by the plaintiff as in the case of an affidavit for attachment. 2. The requisition. This is a direction to the sheriff to replevy the goods, and is in these words: PLEADING AND PRACTICE UNDER XEW YORK CODE. 503 " To the sheriff of You are hereby required to replevy the chattels described in the within affidavit, from the defendant. Dated, ... 19 Plaintiff's Attorney. This is deemed the mandate of the court and may be directed to the sheriff of a particular county, or, generally, to the sheriff of any county where the chattel is found. Code Civ. Pro., 1694. 3. An undertaking. There must be two sureties or a surety company. The obligation is for twice the value of the chattels as stated in the affidavit, and the sureties are bound, first, for the prosecution of the action ; second, for the return of the chattels to the defendant, if such return is adjudged, or if the action abates or is discontinued; third, for the payment of any sum awarded to the defendant by the judgment. Code Civ. Pro., 1699. 2. THE AFFIDAVIT. The affidavit must contain allegations of the following facts, Code Civ. Pro., 1695 : 1. That the plaintiff is the owner of the chattel, or is entitled to the possession thereof by reason of a special property right, in which case the facts showing such property right must be set forth. Depew v. Leal, 2 Abb. Pr. 131. 2. The wrongful detention by the defendant; and where demand is necessary, that it has been made. McAdam v. Walbrau, 8 Civ. Pro. 451. 3. The alleged cause of detention, according to the best knowl- edge, information and belief of the person making the affidavit. 4. That it. has not been taken by virtue of a warrant, against the plaintiff, for the collection of a tax, assessment, or fine, issued in pursuance of a statute of the State, or of the United States; or, if it has been taken under color of such a warrant, either that the taking was unlawful, by reason of defects in the process, or other causes specified, or that the detention is unlawful, by reason of the facts specified, which have subsequently occurred. 5. That it has not been seized by virtue of an execution or war- rant of attachment, against the property of the plaintiff, or of any person from or through whom the plaintiff has derived title to the chattel, since the seizure thereof; or, if it has been so seized, that it was exempt, from the seizure, by reason of facts specified, or that its detention is unlawful, by reason of facts specified which have subsequently occurred. 6. Its actual value. Code Civ. Pro., 1695. Where the affidavit describes two or more chattels of the same kind, the number, bulk, weight, quantity or measurement of the chattels must be stated. Code Civ. Pro.,' 1697. 504: QUESTIONS AND ANSWERS. 3. RIGHTS OF THE DEFENDANT. After the chattels have been replevied and a copy of the affidavit, requisition and undertaking served, the defendant may (1) except to the plaintiff's sureties at any time within three days; (2) de- mand a return of the property. If he does neither, the sheriff must deliver the goods to the plain- tiff unless a claim to the chattel, supported by affidavit, is made by a third person, in which case the sheriff is entitled to indemnity from the plaintiff against such claim. Code Civ. Pro., 1703, 1704, 1706, 1709. The defendant cannot both except to the plain- tiff's sureties and demand a return of the property; excepting to the sureties is a waiver of the right to reclaim. Hofheimer v. Campbell, 59 N. Y. 269. The demand for a return of the goods must be based upon: (1) An affidavit. (2) An undertaking. The affidavit may be on information and belief; Lange v. Lewi, 58 N. Y. Super. Ct. 265; and must allege that defendant is the owner of the chattel, or lawfully entitled to its possession by virtue of a special property, stating the facts in the latter case. The undertaking must have two sureties, or a surety company. The obligation must be for twice the value of the chattel as stated in the plaintiff's affidavit (therefore the necessity of stating actual value by plaintiff), and the sureties are bound (1) to deliver the chattel to plaintiff, if delivery thereof is adjudged, or the action abates, because of defendant's death; (2) for the payment to the plaintiff of any sum which the judgment awards against the de- fendant. Code Civ. Pro., 1704. A defendant may even be arrested in an action to recover a chattel, where it is alleged in the complaint that the chattel, or a part thereof, has been concealed, removed, or disposed of, so that it cannot be found or taken by the sheriff, and with intent that it should not be so found or taken. Code Civ. Pro., 549, subd. 2. e. Beceivers. 71. What are the general Code provisions relating to receivers? In addition to the cases where the appointment is specially pro- vided for by law, a receiver of property which is the subject of an action in the Supreme Court, or a County Court, may be appointed by the court in either of the following cases : 1. Before final judgment, on the application of a party who es- tablishes an apparent right or interest in property in the possession of the adverse party, and there is danger that it will be removed beyond the jurisdiction of the court or lost, materially injured, or destroyed. 2. By or after final judgment to carry the judgment into effect, or to dispose of the property according to its directions. 3. After final judgment to preserve the property during the- pendency of appeal. PLEADING AND PRACTICE UNDER NEW YORK CODE. 505 The word "property" includes rents, profits, or other income, and increase of property, real or personal. Code Civ. Pro., 713. Xotice of an application for appointment of a receiver before judgment must be given to the adverse party, unless he has failed to appear and the time limited for his appearance has expired. But in cases where service of summons without the State, or by pub- lication, has been allowed, the court may in its discretion appoint a temporary receiver. Code Civ. Pro., 714. The papers necessary to present to the court to procure the appointment of a receiver are (1) petition; (2) affidavit; (3) order. A receiver appointed by or pursuant to an order or a judgment, in an action in the Supreme Court, or a County Court, or in a special proceeding for the voluntary dissolution of a corporation, may take and hold real property, upon such trusts and for such purposes as the court directs, subject to the direction of the court, from time to time, respecting the disposition thereof. Code Civ Pro., 716. The common cases in which a receiver is appointed under the above section are : 1. In cases of executors and administrators, and trustees. Tur- ner v. Crichton, 53 X. Y. 641. 2. In cases of mortgages and liens. Eider v. Bagley, 84 N". Y. 461. 3. In cases of partnerships. McElvey v. Lewis, 76 N". Y. 373. 4. In creditors' actions. Code Civ. Pro., 1877. 5. In actions relating to real property. King v. King, 41 X. Y. Super. Ct. 516. 6. In actions to wind up corporations. Code Civ. Pro., 1788. See Code Civ. Pro., 1810. f. Deposit, Delivery or Conveyance of Property. 72. What are the general Code provisions relating to deposit, delivery or conveyance of property? Where it is admitted by the pleading or examination of a party that he has in his possession or under his control money or other personal property capable of delivery, which, being the subject of the action or special proceeding, is held by him as trustee for an- other party, or which belongs or is due to another party, the court may in its discretion grant an order, upon notice, that it be paid into or deposited in court or delivered to that party, with or with- out security, subject to the further discretion of the court. If a party refuses to obey such a mandate as is described above, or one of the same nature, he may be punished for contempt ; and the court may direct the sheriff to take and deposit or deliver the money or personal property, or convey the property in accordance with its direction. Code Civ. Pro., 717, 718. 506 QUESTIONS AND ANSWERS. X. Lis PENDENS. 73. What is the object of filing a notice of pendency of an action ? The object is to give constructive notice to all the world, from the time of filing the notice that a suit is pending in a certain court, in which the title to the property described in the Us pendens is involved; and to warn all persons who purchase or acquire liens upon the property during the pendency of the action that they take title subject to the final decree of the court in reference thereto. Code Civ. Pro., 1671. 74. What must a Us pendens contain, and where should it be filed? The names of the parties to the action and the object thereof, together with a description of the property affected thereby. Such a notice should be filed in the clerk's office of every county where the property is situated, and it may be filed with the complaint be- fore the summons is served, or at any time before final judgment. Code Civ. Pro., 1670. 75. In what actions is it advisable to file such a notice? In an action brought to recover a judgment affecting the title to or the possession, use, or enjoyment of real property, the plaintiff may, when he files his complaint, or at any time before final judg- ment, file a Us pendens, and in all such cases it is advisable so to do. Code Civ. Pro., 1670-1674. 76. In what actions must such a notice be filed? In actions for the foreclosure of mortgages. The notice must be filed at least twenty days before final judgment of sale. Code Civ. Pro., 1631. Genl. Rules Prac. 60. XI. INTERPLEADER. 77. In what actions may a defendant interplead other parties under the Code? 1. Actions to recover upon a contract. 2. Actions of ejectment. 3. Actions to recover a chattel. Code Civ. Pro., 820. 78. What must a defendant show to obtain an order to inter- plead another person in his place? He must apply before answer and show by affidavit : 1. That a person not a party to the action makes a demand against him. 2. That the demand is made in reference to the same debt or property. 3. That there is no collusion. PLEADING AND PRACTICE UNDEE NEW YORK CODE. 507 The court may then grant an order substituting the person so claiming in place of the defendant, and discharging the latter irom liability on his paying into court the amount of the debt, or delivering the possession of the property or its value to such jperson as the court directs. AYhere, also, the defendant disputes his liability or asserts some interest in the subject-matter of the controversy, he may ask for .an order joining any other claimants as codefendants in the action. The granting of such an order may be on certain terms, and is in the discretion of the court. Code Civ. Pro., 820. XII. EVIDENCE. 79. To what extent and with what qualifications are parties and persons interested in the event of an action competent to testify in the New York courts? As a general rule, all parties and persons interested may testify in their own behalf ; but upon the trial of an action, or the hearing upon the merits of a special proceeding, a party or person interested in the event, or a person from, through, or under whom such a party or interested person derives his interest or title, by assign- ment or otherwise, shall not be examined as a witness in his own behalf or interest, or in behalf of the party succeeding to his title or interest against the executor, administrator, or survivor of a de- ceased person, or the committee of a lunatic, or a person deriving his title or interest from, through, or under a deceased person or lunatic, by assignment or otherwise, concerning a personal trans- action or communication between the witness and the deceased per- son or lunatic, except where the executor, administrator, survivor, committee, or person so deriving title or interest is examined in his own behalf, or the testimony of the lunatic or deceased person is given in evidence concerning the same transaction or communica- tion. A person shall not be deemed interested by reason of being a stockholder or officer of any banking corporation which is a party to the action or proceeding or interested in the event thereof. It may also be stated that a husband or a wife is not competent to testify against the other upon the trial of an action, or the hear- ing upon the merits of a special proceeding founded upon an allega- tion of adultery, except to prove the marriage or disprove the alle- gation of adultery. Code Civ. Pro., 828, 829, 831. 80. Under what circumstances may a clergyman, physician, or attorney testify as to professional confidences? A clergyman shall not be allowed to disclose confessions made to him, as such, enjoined by the rules or practice of his religion-; body, unless such restriction be expressly waived at the examination by the person so confessing, or by stipulation of his attorney in advance of the examination, nor shall an attorney or his dork. stenographer, or other employee, be allowed to disclose any pro- 508 QUESTIONS AND ANSWERS. fessional communication made to him by his client, nor his advice thereon unless the client makes a similar waiver. Code Civ. Pro. r 833, 835. Xo physician or registered nurse shall be allowed, in. the absence of a similar waiver from the patient, to disclose any information which he acquired in a professional capacity, and which was necessary to enable him to act in that capacity save that (1) if the patient is a child under sixteen and the information in- dictates that he has been the victim of a crime, the testimony may be given where the crime is the subject of inquiry, and (2) testi- mony may be given as to the mental or physical condition of a de- ceased patient, except such facts as would tend to disgrace his- memory, when the witness' disqualification has been waived by the personal representatives of the deceased, or the party in interest where the validity of the will of the deceased is in question. Code Civ. Pro., 833-836. XIII. TRIALS; INCLUDING JURORS AND JURIES. 81. What are the civil actions in which a jury trial is a matter of right? In each of the following actions an issue of fact must be tried by a jury, unless a jury trial is waived or a reference is directed : 1. An action in which the complaint demands judgment for a sum of money only. 2. An action of ejectment ; for dower ; for waste ; for a nuisance ; or to recover a chattel. Code Civ. Pro., 968. 82. What issues are triable without a jury? An issue of law, in any action, and an issue of fact in an action not specified in the last question, or wherein provision for a trial by jury is not expressly made by law, must be tried by the court, un- less a reference or a jury trial is directed. Code Civ. Pro., 969. 83. State the general rules governing the granting of new trials in civil actions, and the manner of making application for a new trial. 1. The judge, presiding at a trial by a jury, may, in his dis- cretion, entertain a motion, made upon his minutes, at the same term, to set aside the verdict or a direction dismissing the com- plaint and grant a new trial upon exceptions; or because the ver- dict is for excessive or insufficient damages, or otherwise contrary to the evidence, or contrary to law. Code Civ. Pro., 999. 2. Upon order of such judge, during the same term, exceptions- taken at a trial by jury may be brought on for hearing in the first instance at the Appellate Division, and the judgment suspended meantime. Such hearing is brought on by a motion for a new trial at the Appellate Division. Code Civ. Pro., 1000. 3. Where, after trial by referee or by court without a jury, an PLEADING AND PRACTICE UNDER XEW YORK CODE. 509 interlocutory judgment is directed; and further proceedings before "die court, a judge, or a referee are necessary before final judgment can be entered; a motion for a new trial upon exceptions may be made at the Appellate Division after entry of the interlocutory judgment and before the hearing directed therein. Code Civ. Pro., 1001. 4. Except as above, motions for a new trial must be made at Special Term. If made upon an allegation of error in a finding of fact or ruling of law, such motion must be made before the ex- piration of time to appeal, and before the trial judge unless he specially directs otherwise, or unless he is dead or disqualified. Code Civ. Pro., 1002. It is not necessary to make a case, for the purpose of moving for a new trial, upon the minutes of the judge, who presided at a trial by jury; or upon an allegation of irregularity, or surprise; or where a party intends to appeal from a judgment entered upon a referee's report, or a decision of the court upon a trial, without a jury, and to rely only upon exceptions, taken as prescribed in sec- tion 994 of this' act. " Code Civ. Pro., 998. In general, motions for new trial will be granted where there has been material error or irregularity in the conduct of the trial, and frequently where the moving party has since the trial dis- covered new and important evidence. 84. In what cases may there be a compulsory reference in issues of fact? Where the trial will require the examination of a long account on either side, and will not require the decision of difficult ques- tions of law. Dane v. Ins. Co., 21 Hun (X. Y.), 259; Code Civ. Pro., 1013. In an action triable by the court without a jury, a reference may be made to decide the whole issue, or any of the issues ; or to report the referee's finding upon one or more specific questions of fact involved in the issue. Code Civ. Pro., 1013. 85. What are the qualifications of a trial juror with respect to age and property? In order to be qualified to serve as a trial juror in a court of record a person must be: 1. A male citizen of the United States and a resident of the county. 2. Xot less ttan twenty-one nor more than seventy years of age. 3. Assessed for personal property belonging to him, in his own right, to the amount of $250; or the owner of a freehold estate in real property, situated in the county, belonging to him in his own riffht, of the value of $150; or the husband of a woman who is owner of a like freehold estate belonging to her. in her own n>ht. 4. In the possession of his natural faculties, and not infirm or decrepit. 510 QUESTIONS AND ANSWERS. 5. Free from all legal exceptions; of fair character; of approved integrity; of sound judgment, and well informed. *But a person who was assessed on the last assessment-roll of the town for land in his possession, held under a contract for the pur- chase thereof, upon which improvements, owned by him, have been made to the value of $150, is qualified to serve as a trial juror, although he does not possess either of the qualifications specified in subdivision third of the last paragraph, provided he is qualified in every other respect. Code Civ. Pro., 1027, 1028. There are also certain special provisions as to the qualification of jurors in the counties of New York, Kings and Queens. See- Code Civ. Pro., 1027, 1078, 1079-1125, 1126-1162. XIV. ACTIONS BY STATE WRIT. 86. What are the State writs? The Code enumerates them as follows: The writ of (1) habeas corpus to bring up a person to testify or to answer; (2) the writ of habeas corpus and the writ of ceriiorari to inquire into the cause of detention; (3) the writ of mandamus; (4) the writ of prohibition; (5) the writ of assessment of damages, which is substituted for the writ heretofore known as the writ of ad quod damnum; (6) and the writ of certiorari, to review the de- termination of an inferior tribunal, which may be called the writ of review. Code Civ. Pro., 1994. a. Habeas Corpus to Testify. 87. What are the general provisions of the Code relating to the writ of habeas corpus to testify? A court of record, other than a Justices' Court of a city, or a judge of such a court, or a justice of the Supreme Court, has power upon the application of a party to an action or special proceeding, civil or criminal, pending therein, to issue a writ of habeas corpus^ for the purpose of bringing before the court a prisoner, detained in a jail or prison within the State, to testify as a witness in the action or special proceeding, in behalf of the applicant. Code Civ. Pro., 2008. b. Habeas Corpus and Certiorari to Inquire into Cause of Detention. 88. What are the general Code provisions relating to the issuing of the writs of habeas corpus and ceriiorari, to inquire into the cause of detention ? A person imprisoned or restrained in his liberty, within the State, for any cause, or upon any pretense, is entitled, except in one of the cases specified in the next section, to a writ of habeis corpus, or a writ of certiorari, as prescribed in this article, for the purpose of inquiring into the cause of the imprisonment or restraint, and. in a case prescribed by law, of delivering him therefrom. A writ PLEADING AND PRACTICE UNDER NEW YORK CODE. 511 of habeas corpus may be issued and served under this section, on Sunday ; but it cannot be made returnable on that day. Code Civ Pro., 2015. A person is not entitled to either of the writs specified in the last section, in either of the following cases : 1. Where he has been committed, or is detained, by virtue of a mandate, issued by a court or a judge of the United States, in a case where such courts or judges have exclusive jurisdiction under the laws of the United States, or have acquired exclusive juris- diction by the commencement of legal proceedings in such a court. 2. Where he has been committed, or is detained, by virtue of the final judgment or decree of a competent tribunal of 'civil or crim- inal jurisdiction; or the final order of such a tribunal, made in a special proceeding, instituted for any cause, except to punish him for a contempt ; or by virtue of an execution or other .process, issued upon such a judgment, decree, or final order. Code Civ. Pro., 2016. 89. What discretion is allowed in granting a writ of habeas corpus or certiorari ? A court or a judge, authorized to grant either writ, must grant it without delay, whenever a petition therefor is presented, as pre- scribed in the foregoing sections of. this article, unless it appears, from the petition itself, or the documents annexed thereto, that the petitioner is prohibited by law from prosecuting the writ. For a violation of this section, a judge, or, if the application was made to a court, each member of the court, who assents to the violation, forfeits to the prisoner $1,000, to be recovered by an action in his name, or in the name of the petitioner to his use. Code Civ. Pro., 2020. 90. What is the form of the writs of habeas corpus and cer- tiorari? The writ of habeas corpus, issued as prescribed in this article, must be substantially in the following form, the blanks being prop- erly filled up : " The People of the State of New York, To the Sheriff of," etc. [or " to A. B."] " We command you, that you have the body of C. B., by you imprisoned and detained, as it is said, together with the time and cause of such imprisonment and detention, by whatsoever name the said C. D. is called or charged, before ," [" the Su- preme Court, at a Special Term or term of the Appellate Division thereof, to be held," or " F. F., justice of the Supreme Court," or otherwise, as the case may be] "at on " [or " immediately after the receipt of this writ,"] to do and re- ceive what shall then and there be considered, concerning the said C. D. And have vou then there this writ. 512 QUESTIONS AXD ANSWERS. " Witness , one of the justices " [or " judges "] "of the said court," [or "county judge," or otherwise, as the case may be,] " the day of , in the year .' " Code Civ. Pro., 2021. The writ of certiorari, issued as prescribed in this article, must be substantially in the following form, the blanks being properly filled up : " The People of the State of New York, To the Sheriff of," etc. [or "to A. B."] " We command you, that you certify fully and at large, to ," [" the Supreme Court, at a Special Term or term of the Appellate Division thereof, to be held," or " E. F., justice of the Supreme Court," or otherwise, as the case may be,] " at , on ," [or " immediately after the re- ceipt of this writ,"] "the day and cause of the imprisonment of C. D., by you detained, as it is said, by whatsoever name the said C. D. is called or charged. And have you then there this writ. " Witness, , one of the justices " [or " judges "] " of the said court," [or " county judge," or otherwise, as the case may be,] " the day of , in the year " Code Civ. Pro., 2022. 91. When may a writ of certiorari issue upon application for a writ of habeas corpus? Where an application is made for a writ of habeas corpus, as prescribed in this article, and it appears to the court or judge, upon the petition and the documents annexed thereto, that the cause or offense, for which the party is imprisoned or detained, is not bailable, a writ of certiorari may be granted, instead of a writ of habeas corpus, as if the application had been made for the former writ. Code Civ. Pro., 2041. c. Mandamus. 92. What are the general provisions of the Code in regard to a writ of mandamus? A writ of mandamus is either alternative or peremptory. The alternative writ may be granted upon an affidavit, or other written proof, showing a proper case therefor; and either with or without previous notice of the application, as the court thinks proper. Except where special provision therefor is otherwise made in this article, a writ of mandamus can be granted only at Special Term of the court held within the judicial district, embracing the county, wherein an issue of fact, joined upon an alternative writ of mandamus, is triable. Code Civ. Pro., 2067, 2068. A peremptory writ of mandamus may be issued, in the first in- stance, where the applicant's right to the mandamus depends only upon questions of law, and notice of the application has been given PLEADING AND PRACTICE UXDER XEW YORK CODE. 513 to a judge of the court, or to the corporation, board, or other body, officer, or other person, to which or to whom it is directed. Code Civ. Pro., 2070. The alternative writ of mandamus is governed by chapter 6 of the Code, relating to a complaint, as to the statement of facts, joinder of several causes of action and demand for judgment. The person upon whom the writ is served may either make a return or demur to it, or demur to any separate offense alleged, the demurrer being in like form as to a complaint, and make a return to the remainder. Code Civ. Pro., 2076. The provisions of chapter 6 of the Code, relating to the form and contents of an answer, apply in general to a return, and each com- plete statement of facts assigning a cause why a writ ought not to be obeyed must be separately stated and numbered as a separate de- fense. ' Code Civ. Pro., 2077. Where a return to an alternative writ of mandamus has been filed, fhe attorney for the defendant making it must serve, upon the attorney for the people or the relator, a notice of the filing thereof. Where the people or the relator demur to the return, or to a part thereof, a copy of the demurrer must be served upon the attorney for the defendant, within twenty days after the service of such a notice. Where the defendant demurs to the writ, or to a part thereof, a copy of the demurrer must be served upon the attorney for the people or the relator, within the time prescribed by law for filing it. Code Civ. Pro., 2081. Except as otherwise expressly prescribed in this act, the pro- ceedings after issue is joined, upon the facts or upon the law, are, in all respects, the same as in an action; the final order is deemed a final judgment and may be entered and enforced, with respect to such parts thereof as are not enforced by a peremptory mandamus, as a final judgment in an action. Code Civ. Pro., 2082. d. Prohibition. 93. IVhat are the general provisions of the Code in regard to a writ of prohibition? A writ of prohibition is either alternative or absolute. The alter- native writ may be granted upon an affidavit, or other written proof, showing a proper case therefor, and either with or without previous notice of the application, as the court thinks proper. Code Civ. Pro., 2091. Where it is directed to a judge or judges of the Supreme Court it can be granted only by the Appellate Division in the Judicial Department where the action is pending, or, if no term of the Appellate Division in that department is in session, in the adjoining department. Code Civ. Pro., 2093. Except as otherwise specially prescribed by law, an absolute writ of prohibition cannot be issued, until an alternative writ has been issued and duly served, and the return day thereof has elapsed. The alternative' writ must be directed to the court in which, or to 33 514: QUESTIONS AND ANSWERS. the judge before whom, and also to the party in whose favor, the proceedings to be restrained were taken, or are about to be taken. It must command the court or judge, and also the party, to desist and refrain from any further proceedings in the action or special proceeding, or with respect to the particular matter or thing de- scribed therein, as the case may be, until the further direction of the court issuing the writ; and also to show cause, at the time when, and the place where, the writ is made returnable, why they should not be absolutely restrained from any further proceedings in that action, special proceeding, or matter. The writ need not con- tain any statement of the facts or legal objections, upon which the relator founds his claim to relief. Code Civ. Pro., 2094. Where the alternative writ has been duly served upon the court or judge, and upon the party, the relator is entitled to an absolute writ, unless a return is made by the court or judge, and by the party, according to the exigency of the alternative writ, or within such further time as may be granted for the purpose. The return must be annexed to a copy of the writ; and it must be either de- livered in open court, or filed in the office of the clerk of the county where the writ is returnable. Where the party makes a return, the court or judge must also make a return. Code Civ. Pro., 2096. Pleadings are not allowed upon a writ of prohibition. Where an alternative writ has been issued, the cause may be disposed of with- out further notice, at the term at which the writ is returnable. If it is not then disposed of, it may be brought to a hearing, upon notice, at a subsequent term. The relator may controvert, by affi- davit, any allegation of new matter contained in the return. The court may direct the trial of any question of fact by a jury, in like manner and with like effect as where an order is made for the trial, by a jury, of issues of fact, joined in an action triable by the court. Where such a direction is given, the proceedings must be the same as upon the trial of issues so joined in an action. Code Civ. Pro., 2099. e. Assessment of Damages. 94. What are the general provisions of the Code relating to the writ of assessment of damages? Whenever the governor of the State is authorized by law to take possession of any real property within the State, for the u=e of the people of the State, and he cannot agree with the owner or owners thereof for its purchase, he may cause application to be made to the Supreme Court, at a Special Term thereof, for a writ of assessment of damages, which must be granted accordingly. Code Civ. Pro., 2104. The writ must describe the real property to be taken, with^ the- like certainty as is required in a complaint in an action of eject- ment. It must command the sheriff, to whom it is directed, to in- quire, by the oaths of twelve men of his county, qualified to act as trial jurors in a court of record, whether the owner or owners of PLEADING AND PRACTICE UNDER N"EW YORK CODE. 515 the real property, or any of them, will sustain any damages by the taking thereof, for the use of the people of the State ; and, if so, the amount thereof ; and that he return the writ to the Supreme Court, without delay, with the finding of the jury thereupon. Code Civ Pro., 2107. .f. Certiorari to Eeview. 95. What are the general provisions of the Code relating to the writ of certiorari, to review the determination of an inferior tribunal? The writ of certiorari regulated in this article is issued to re- view the determination of a body or officer. It can be issued in one of the following cases only, except where issued by an appel- late court to supply a diminution or other defect of the record. 1. Where the right to the writ is expressly conferred, or the issue thereof is expressly authorized, by a statute. 2. Where the writ may be issued at common law, by a court of general jurisdiction, and the right to the writ, or the power of the court to issue it, is not expressly taken away by a statute. Code Civ. Pro., 2120, 2124. A writ of certiorari cannot be issued, to review a determination made, after this article takes effect, in a civil action or special pro- ceeding, by a court of record, or a judge of a court of record. Code Civ. Pro., 2121. Except as otherwise expressly prescribed by statute, a writ of certiorari cannot be issued, in either of the following cases: 1. To review a determination, which does not finally determine the rights of the parties, with respect to the matter to be reviewed. 2. Where the determination can be adequately reviewed, by an appeal to a court, or to some other body or officer. 3. Where the body or officer making the determination is ex- pressly authorized, by statute, to rehear the matter, upon the re- lator's application, unless the determination to be reviewed was made upon a rehearing, or the time within which the relator can procure a rehearing has elapsed. Code Civ. Pro., 2122. A writ of certiorari can be issued only out of the Supreme Court, excepting a case where another court is expressly authorized by statute to issue it. Code Civ. Pro., 2123. The questions involving the merits, to be determined by the court upon the hearing, are the following, only : 1. Whether the body or officer had jurisdiction of the subject- matter of the determination under review. 2. Whether the authority conferred upon the body or officer, in relation to that subject-matter, has been pursued in the mode re- quired by law, in order to authorize it or him to make the deter- mination. 3. Whether, in making the determination, any rule of law. affect- ing the rights of the parties thereto, has been violated, to the pre- judice of the relator. 516 QUESTIONS AND ANSWERS. 4. Whether there was any competent proof of all the facts, neces- sary to be proved, in order to authorize the making of the deter- mination. 5. If there was such proof, whether there was, upon all the evi- dence, such a preponderance of proof, against the existence of any of those facts, that the verdict of a jury, affirming the existence thereof, rendered in an action in the Supreme Court, triable by a jury, would be set aside by the court, as against the weight of evidence. Code Civ. Pro., 2140. XV. ARBITRATION. 96. What is an arbitration? The investigation and determination of a matter or matters of difference between contending parties by one or more unofficial persons, chosen by the parties, and called arbitrators or referees. Code Civ. Pro., 2365-2386. 97. What, under the Code, may be submitted to arbitration? All civil controversies, which might be the subject of an action, except (1) where one of the parties to the controversy is an infant or a person incompetent to manage his own affairs; (2) or where the controversy arises respecting a claim to an estate in real prop- erty, in fee or for life ; but the restriction in relation to real prop- erty does not prevent the submission of a claim to an estate for years, or other interest for a term of years, or for one year or less, in realty, or of a controversy respecting the partition of real prop- erty between joint tenants or tenants in common; or of a contro- versy respecting the boundaries of lands or the admeasurement of dower. The submission must be made by an instrument in writing duly acknowledged or proved. It may provide that a judgment of a court of record therein specified may be entered upon the award. Code Civ. Pro., 2365-2366. The award or decision of the arbitrators may be made a judgment of the specified court, upon application of the attorney for the successful party; but no award will be allowed to be valid or bind- ing which was procured by fraud or undue influence, or where the arbitrators showed evident partiality, were guilty of miscon- duct in excluding material evidence or in any other respect, or where the arbitrators exceeded their powers or imperfectly executed them. Code Civ. Pro., 2373, 2374. XVI. SUPPLEMENTARY PEOCEEDINGS. 98. What are the necessary allegations in an affidavit to obtain an order to examine a judgment debtor in supplementary proceed- ings? 1. That the plaintiff recovered a judgment for more than $25, exclusive of costs, against the defendant, and the date thereof. PLEADING AND PRACTICE UNDER XEW YORK CODE. 51T 2. That the judgment-roll was filed in the county clerk's office on a certain day. 3. That execution was issued from a court of record to the sheriff of the county where the defendant resides, or where at the time of the beginning of the proceedings he had a regular place for the transaction of business in person, or if the defendant is not at the time of the execution a resident of the State, to the sheriff of the county where the judgment or transcript is filed, and was returned wholly or partly unsatisfied within ten years. 4. That the judgment remains wholly or partly unpaid. 5. That no previous application for an order for the examination of the judgment debtor has been made. Code Civ. Pro., 2435, 2458; Genl. Eules Prac. 25. To obtain an order for examination of a judgment debtor, in supplementary proceedings, it is necessary that the ' action from which the judgment results should have been begun by personal service of the summons on, or appearance of, the judgment debtor, or by substituted service in accordance with section 436 of the Code. Code Civ. Pro., 2458. At any time after the issuing of execution against property under section 2458 of the Code, and before the return thereof, the judgment creditor, upon proof by affidavit that the judgment debtor has property which he unjustly refuses to apply to the satisfaction of the judgment, may obtain an order, re- quiring the judgment debtor to attend for examination. Code Civ. Pro., 2436. XVII. LIMITATION OF ACTIONS. 99. What are Statutes of Limitation? Statutes of Limitation are statutes passed defining the periods within which claims must be placed in suit. 2 Bouvier's Law Diet. 55. Such statutes act upon the remedy by depriving the person to whom the obligation is due of the right of suing after a certain time. 2 Bouvier's Law Diet. 242. 100. Must the Statute of Limitations be pleaded to be avail- able? Yes. The objection, that the action was not commenced within the time limited, can be taken only by answer. The correspond- ing objection to a defense or counterclaim can be taken only by reply, except where a reply is not required, in order to enable the plaintiff to raise an issue of fact, upon an allegation contained in the answer. Code Civ. Pro., 413. 518 QUESTIONS AND ANSWERS. 101. What are the time limitations for bringing different actions under the Code? 1. Actions for the recovery of real property. (a) By the people. " The people of the State will not sue a person for or with respect to real property, or the issues or profits thereof, by reason of the right or title of the people to the same, unless either : 1. The cause of action accrued within forty years before the action is commenced; or, 2. The people, or those from whom they claim, have received the rents and profits of the real property or of some part thereof, within the same period of time" (Code Civ. Pro., 362), except in the case of an action to recover real property after the judicial annulment of lettefs patent. The period is then twenty years. Code Civ. Pro., 364. (b) By individuals. An action to recover real property, or the possession thereof, cannot be maintained by a party, other than the people, unless the plaintiff, his ancestor, predecessor, or grantor, was seized or pos- sessed of the premises in question, within twenty years before the commencement of the action. Code Civ. Pro., 365. 2. Actions other than for the recovery of real property. "Within twenty years. 1. Judgments of a court of record are conclusively presumed to be satisfied after twenty years except as against a person who within twenty years from that time has made a payment, or written and signed an acknowledgment of indebtedness as to some part, of the amount recovered; or some person claiming through such a person. Such a judgment may be made a lien upon land of the judgment debtor for ten years, if it is docketed in the county where the land is situated. Code Civ. Pro., 376, 1251. 2. An action to redeem from a mortgage may be maintained by the mortgagor or person claiming under him any time within twenty years after the breach of a condition or nonfulfillment of a covenant contained in the mortgage. Code Civ. Pro., 379. 3. An action upon a sealed instrument must be brought within twenty years. But where the action is brought for breach of a covenant of seizin, or against incumbrances, the cause of action is, for the pur- poses of this section only, deemed to have accrued upon an eviction, and not before. Code Civ. Pro., 381. The following actions must be commenced within the following periods after the cause of action has accrued. Within six years. 1. An action upon a contract, obligation, or liability, express or implied, except a judgment or sealed instrument. PLEADING AND PRACTICE UNDER XEW YORK CODE. 519 2. An action to recover upon a liability created by statute, ex- cept a penalty or forfeiture. 3. An action to recover damages for an injury to property or a personal injury, except in a case where a different period is pro- vided by the Code. 4. An action to recover a chattel. 5. An action to procure a judgment other than for a sum of money, on the ground of fraud, in a case where the Court of Chan- cery formerly had jurisdiction. The cause of action in such a case is not deemed to have accrued until the discovery, by the plain- tiff or the person under whom he claims, of the facts constituting the fraud. 6. An action to establish a will. Where the will has been lost, concealed, or destroyed, the cause of action is not deemed to have accrued until the discovery, by the plaintiff or the person under whom he claims, of the facts upon which its validity depends. 7. An action upon a judgment or decree rendered in a court not of record, except where a transcript shall be filed pursuant to section 3017, and also, except a decree heretofore rendered in a Surrogate's Court of the State. The cause of action is deemed to have accrued when final judgment was rendered. Code Civ. Pro.. 382. Within three years. 1. An action against a sheriff, coroner, constable, or other officer for nonpayment of money collected upon execution. 2. An action against a constable, upon any other liability in- curred by him, by doing an act in his official capacity or by the omission of an official duty (except an escape). 3. An action upon a statute for a penalty or forfeiture, where the action is given to the person aggrieved or to that person and the people of the State, except where the statute imposing it provides a different limitation. 4. An action against an executor, administrator, or receiver, or against the trustee of an insolvent debtor, appointed as prescribed by law in a special proceeding instituted in a court or before a judge, brought to recover a chattel or damages for taking, detain- ing, or injuring personal property by the defendant or the person whom he represents. 5. An action to recover damages for a personal injury resulting from negligence. Code Civ. Pro., 383. Within two years. 1. An action to recover damages for libel, slander, assault, bat- tery, seduction, criminal conversation, false imprisonment, or ma- licious prosecution. 2. An action upon a statute for a forfeiture or penalty to the people of the State. Code Civ. Pro., 384. 520 QUESTIONS AND ANSWERS. Within one year. 1. An action against a sheriff or coroner upon a liability in- curred by him by doing an act in his official capacity or by the omission of an official duty, except the nonpayment of money col- lected upon an execution. 2. An action against any other officer for the escape of a prisoner, arrested or imprisoned by virtue of a civil mandate. Code Civ. Pro., 385. A cause of action is deemed to have accrued on a current account from the time of the last item proved in the account, on either side. Code Civ. Pro., 386. An action upon a statute for the recovery of a penalty or for- feiture given wholly or partly to any person who will sue upon the same, must be begun within one year after the commission of the offense; but if the action is not commenced within the year by a private person, the attorney-general or the district attorney of the county where the offense was committed, may prosecute the claim any time within two years thereafter in the name of the people. Such an action as the foregoing is called a qui tarn action. Code Civ. Pro., 387. All actions not otherwise provided for must be commenced within ten years after the cause of action accrues. Code Civ. Pro., 388. 102. What disabilities are excluded from the time within which to commence actions other than for the recovery of real property? If a person, entitled to maintain an action, except for a penalty or forfeiture, or against a sheriff or other officer for an escape, is, at the time when the cause of action accrues, either: 1. Within the age of twenty-one years; or, 2. Insane; or, 3. Imprisoned on a criminal charge, or in execution upon con- viction of a criminal offense, for a term less than for life; The time of such a disability is not a part of the time limited for commencing the action ; except that the time so limited cannot be extended more than five years by any such disability, except in- fancy; or, in any case, more than one year after the disability ceases. Code Civ. Pro., 396. If, when a cause of action accrues against a person, he is without the State, the action may be commenced within the time limited therefor, after his return into the State. If. after a cause of action has accrued against a person, he departs from the State, and re- mains continuously absent therefrom for the space of one year or more, or if, without the knowledge of the person enti- tled to maintain the action, he resides within the State under a false name, the time of his absence or of such residence within the . State under such false name is not a part of the time limited for the commencement of the action. This provision does not apply, however, in a case where the PLEADING AND PRACTICE UNDER NEW YORK CODE. 521 defendant has designated a person upon whom to serve the sum- mons. Code Civ. Pro., 401. It is necessary that a person should become a nonresident to prevent the statute's continuing to run, and he must remain such for the entire year. First Xat, Bk. v. Bissell, 24 St. Rep. 909. 103. ^Yhat disabilities are excluded from the time within which to commence an action for the recovery of real property? 1 f a person, who might maintain an action to recover real prop- erty, or the possession thereof, or make an entry, or interpose a de- fense or counterclaim, founded on the title to real property, or to rents or services out of the same, is, when his title first descends, or his cause of action or right of entry first accrues, either: 1. Within the age of twenty-one years; or, 2. Insane; or, 3. Imprisoned on a criminal charge, or in execution upon con- viction of a criminal offense, for a term less than for life ; The time of such a disability is not a part of the time, limited in this title, for commencing the action, or making the entry, or interposing the defense or counterclaim; except that the time so limited cannot be extended more than ten years, after the disability ceases, or after the death of the person so disabled. Code Civ. Pro., 375. But a person cannot avail himself of a disability, unless it existed when his right of action or of entry accrued. Code Civ. Pro.. 408. The provision that the time cannot be extended more than ten years after the disability ceases, does not operate so as to limit the right of action to less than twenty years. If an infant was one day old when the right of action arose lie would have ten years after he arrived at twenty-one, or thirty-one years in all. If he was twenty years old, and should be allowed but ten years after reaching twenty-one, he would have but eleven years in all. which would be contrary to the statute allowing twenty years, so he would have twenty years after reaching the age of twenty-one; or twenty-one years in all, within which to bring his action. Howell v. Leavitt, 95 X. Y. 617. 104. ~\Yhat constitutes adverse possession of real estate? 1. Where it was entered upon under claim of title based on a written instrument. For the purpose of constituting an adverse possession, by a^ per- son claiming a title founded upon a written instrument, or a judg- ment or decree, land is deemed to have been possessed and oc- cupied in either of the following cases : a. Where it has been usuallv cultivated or improved. b. Where it has been protected by a substantial inelosure. c Where, although not inclosed, it has boen used for the sup- ply of fuel,' or of fencing timber, either for the purposes of hus- bandry, or for the ordinary use of the occupant. 522 QUESTIONS AND ANSWERS. Where a known farm or a single lot has been partly improved, the portion of the farm or lot that has been left not cleared, or not inclosed, according to the usual course and custom of the adjoining country, is deemed to have been occupied for the same length of tiine, as the part improved and cultivated. Code Civ. Pro., 369, 370. 2. Where held under claim of title not written. Where there has been an actual continued occupation of prem- ises, under a claim of title, exclusive of any other right, but not founded upon a written instrument, or a judgment or decree, the premises so actually occupied, and no others, are deemed to have been held adversely. Code Civ. Pro., 371. For the purpose of constituting an adverse possession, by a per- son claiming title, not founded upon a written instrument, or a judgment or decree, land is deemed to have been possessed and oc- cupied in either of the following cases, and no others. a. Where it has been protected by a substantial inclosure. b. Where it has been usually cultivated or improved. Code Civ. Pro., 272. XVIII. EXECUTIONS. 105. How many kinds of executions are there f There are four kinds of execution, as follows : 1. Against property. 2. Against the person. 3. For the delivery of the possession of real property with or without damages for withholding the same. 4. For the delivery of the possession of a chattel, with or with- out damages for the taking or detention thereof. An execution is the process of the court, from which it is issued. Code Civ. Pro., 1364. 106. To what counties may executions issue? An execution against property can be issued only to a county, in the clerk's office of which the judgment is docketed. An execution against the person may be issued to any county. An execution for the delivery of the possession of real property, must be issued to the county where the property, or a part thereof, is situated. An execution for the delivery of the possession of a chattel, may be issued to any county where the chattel is found ; or to the sheriff of the county where the judgment-roll is filed. Executions, upon the same judgment, may be issued at the same ti*me, to two or more different counties. Code Civ. Pro., 1365. 107. What are the general requisites of an execution? An execution must intelligibly describe the judgment, stating the names of the parties in whose favor, and against whom, the time when, and the court in which, the judgment was rendered; and, if PLEADING AND PRACTICE UNDER NEW YORK CODE. 523 it was rendered in the Supreme Court, the county in which the judgment-roll is filed. It must require the sheriff to return it to the proper clerk, within sixty days after the receipt thereof. It must be made returnable to the clerk, with whom the judgment-roil is filed, except where it is issued out of another court upon the filing of a transcript, in which case the execution must be return able to the clerk with whom the transcript is filed. Code Civ. Pro. 1366, 1367. 108. What is required by an execution against property? It must substantially require the sheriff to satisfy the judgment, out of the personal property of the judgment debtor; and if suffi- cient personal property cannot be found, out of the real property,, belonging to him, at the time when the judgment was docketed in the clerk's office of the county, or at any time thereafter. Code Civ. Pro., 1369. 109. What is required by an execution against the person? An execution against the person must substantially require the sheriff to arrest the judgment debtor, and commit him to the jail of the county, until he pays the judgment, or is discharged accord- ing to law. Except where it may be issued, without the previous issuing and return of an execution against property, it must recite the issuing and return of such an execution, specifying the county to which it was issued. Code Civ. Pro., 1372. 110. When may an execution issue of course? The party recovering a final judgment, or his assignee, or his personal representatives in case of his death may have execution thereupon, of course, at any time within five years after the entry of the judgment. Code Civ. Pro., 1375, 1376. After the lapse of five years from the entry of a final judgment, execution can be issued thereupon, in one of the following cases only: 1. Where an execution was issued thereupon, within five years after the entry of the judgment, and has been returned wholly or partly unsatisfied or unexecuted. 2. 'Where an order is made by the court, granting leave to issue the execution. Code Civ. Pro.. 1377. Where a judgment debtor dies after judgment, execution rnny, speaking generally, be issued upon leave of court, after the expira- tion of 'one year from the appointment of hi? personal representa- tives again?t any property on which the judgment is a lien. Execu- tion against real property subject to the judgment lien cannot be issued for three years after the appointment of such personal repre- sentatives. Code Civ. Pro., 1380. 524 QUESTIONS AND ANSWERS. 111. Where and how is a sale of property on execution con- ducted? A sale of real or personal property, by virtue of an execution, or pursuant to the directions contained in a judgment or order, must be made at public auction, between the hour of nine o'clock in the morning and sunset. Code Civ. Pro., 1384. XIX. APPEALS. a. Generally. 112. When may a party appeal? A party aggrieved may appeal, in a case prescribed in the Code, except where the judgment or order, of which he complains, was rendered or made upon his default. Code Civ. Pro., 1294. 113. How is an appeal taken? An appeal must be taken, by serving, upon the attorney for the adverse party, and upon the clerk, with whom the judgment or order appealed from is entered, by filing in his office a written notice to the effect that the appellant appeals from the judgment or order, or from a specified part thereof. Code Civ. Pro., 1300. 114. In what cases may the amount of the security, upon ap- peal, be limited or dispensed with? Wliere an appeal is taken to the Court of Appeals, or the Ap- pellate Division, the court in or from which an appeal is taken may order, in its discretion and upon notice to the respondent, that the becurity required to stay execution be dispensed with or limited in the following cases: 1. Where the appellant is an executor, administrator, trustee, or other person acting in another's right, security may be dis- pensed with or limited, in the discretion of the court. 2. The aggregate sum, in which one or more undertakings are required to be given, may be limited to not less than $50,000, where it would otherwise exceed that sum. Where the appeal is from an inferior court to the Supreme Court or from a determination in a special proceeding, the court to which an appeal is taken may exercise the same power. Code Civ. Pro., 1312. 115. In what cases is security upon appeal unnecessary? Upon an appeal, taken by the people of the State, or by a State "'r.cer. or board of State officers, or a board of supervisors of a county, the service of the notice of appeal perfects the appeal, and ptays the execution of the judgment or order appealed from, with- out an undertaking, or other security. Code Civ. Pro., ^ 1313. So also in the case of an appeal by a domestic municipal corpora- PLEADING AND PRACTICE UNDER NEW YORK CODE. 525 tion, except that a court may, where the appeal is to the Supreme Court, the Appellate Division, or the Court of Appeals, in its dis- cretion require security to be given. Code Civ. Pro., 131-4. b. To the Court of Appeals. 116. In what cases may an appeal be iaken to the court of Appeals? An appeal may be taken to the Court of Appeals, in a case where that court has jurisdiction, as prescribed in sections 190 and 191 of the Code. Code Civ. Pro., 1324. Those sections provide as follows: 190. The Court of Appeals has exclusive jurisdiction to re- view upon appeal every actual determination made prior to the last day of December, eighteen hundred and ninety-five, at a Gen- eral Term of the Supreme Court, or by either of the Superior City Courts, as then constituted, in all cases in which, under the pro- visions of law existing on said day, appeals might be taken to the Court of Appeals. From and after the last day of December, eighteen hundred and ninety-five, the jurisdiction of the Court of Appeals shall, in civil actions and proceedings, be confined to the review upon appeal of the actual determinations made by the Ap- pellate Division of the Supreme Court in either of the following cases, and no others: 1. Appeals may be taken as of right to said court, from judg- ments or orders finally determining actions or special proceedings, and from orders granting new trials on exceptions, where the ap- pellants stipulate that upon affirmance, judgment absolute shall be rendered against them. 2. Appeals may also be taken from determinations of the Appel- late Division of the Supreme Court, in any department where the Appellate Division allows the same, and certifies that one or more questions of law have arisen which, in its opinion, ought to be reviewed by the Court of Appeals, in which case the appeal brings up for review the question or questions so certified, and no other; and the Court of Appeals shall certify to the Appellate Division its determination upon such questions. 191. The jurisdiction conferred by the last section is subject to the following limitations, exceptions and conditions: 1. No appeal shall be taken to said court, in any civil action or proceeding commenced in any court other than the Supreme Court, Court of Claims, County Court, or a Surrogate's Court, unless the Appellate Division of the Supreme Court allows the appeal by an order made at the term which rendered the determination, or at the next term after judgment is entered thereupon, and shall certifv that in its opinion a question of law is involved which ought to be reviewed by the Court of Appeals. 2. Xo appeal shall be taken to said court from a judgment of affirmance hereafter rendered in an action to recover damages for a 526 QUESTIONS AND ANSWERS. personal injury, or to recover damages for injuries resulting in death, or in an action to set aside a judgment, sale, transfer, con- veyance, assignment, or written instrument, as in fraud of the rights of creditors, or in an action to recover wages, salary, or com- pensation for services, including expenses incidental thereto, or damages for breach of any contract therefor, or in an action upon an individual bond or individual undertaking on appeal, when the decision of the Appellate Division of the Supreme Court is unani- mous, unless such Appellate Division shall certify that, in its opinion, a question of law is involved which ought to be reviewed by the Court of Appeals, or unless in case of its refusal so to certify, an appeal is allowed by a judge of the Court of Appeals. 3. The jurisdiction of the court is limited to a review of ques- tions of law. 4. No unanimous decision of the Appellate Division of the Su- preme Court that there is evidence supporting or tending to sustain a finding of fact or a verdict not directed by the court, shall be re- viewed by the Court of Appeals. 117. Within what time must appeals to the Court of Appeals be taken ? An appeal to the Court of Appeals, from a final judgment, must be taken, within one year after final judgment is entered, upon the determination of the Appellate Division of the Supreme Court, and the judgment-roll filed. An appeal to the Court of Appeals, from an order, must be taken within sixty days after service, upon the attorney for the appellant, of a copy of the order appealed from, and a written notice of the entry thereof. Code Civ. Pro., 1325. 118. What security is necessary to perfect an appeal to the Court of Appeals? To render a notice of appeal, to the Court of Appeals, effectual, for any purpose, except in a case where it is specially prescribed by law that security is not necessary, to perfect the appeal, the appel- lant must give a written undertaking, to the effect, that he will pay all costs and damages, which may be awarded against him on the appeal, not exceeding five hundred dollars. The appeal is per- fected, when such an undertaking is given and a copy thereof, with notice of the filing thereof, is served, as prescribed in this title. Code Civ. Pro., 1325. 119. What security is necessary to stay the execution of judg- ment, pending an appeal to the Court of Appeals? The security required for a stay depends upon the nature of the order or judgment appealed from: (1) If the appeal is from a money judgment, or order directing its payment, the undertaking must secure the sum which may be directed to be paid, if the order 01 judgment is affirmed, or the appeal dismissed. (2) If the appeal PLEADING AND PRACTICE UNDER NEW YORK CODE. 527 is from an order or judgment for delivery of a document or per- sonal property; or (3) of a chattel, the undertaking must be in a sum fixed by the court below that the appellant will obey the direction of the appellate court. But in (2) a stay is obtained if the document or personal property is brought into the court below, or placed in the custody of some person designated by the court. (4) If the execution of a conveyance or other instrument is di- rected, the instrument must be executed and deposited with the clerk of the court below, to abide the direction of the appellate court, before a stay is obtained. (5) If the appeal is taken from a judgment, or order, which directs the sale or delivery of real property, or entitles the respondent to the immediate possession of real property, it does not stay the execution of the judgment or order, until the appellant gives a written undertaking, to the effect that he will not, while in possession of the property, commit, or suffer to be committed, any waste thereon ; and if the property is in his possession, or under his control, the undertaking must also pro- vide that, if the judgment or order is affirmed, or the appeal dis- missed, and there is a deficiency upon a sale, he will pay the value of the use and occupation of the property, or the part thereof as to which the judgment or order is affirmed, from the time of taking the ar>peal, until the delivery of the possession thereof, pursuant to the judgment or order, not exceeding a specified sum, fixed by the judge of the court below. Code Civ. Pro., 1327-1331. 120. How is an undertaking executed and served? Each undertaking must be executed by at least two sureties, and must specify the residence of each surety therein. A copy thereof, with a notice showing where it is filed, must be served on the attor- ney for the adverse party with the notice of appeal, or before the expiration of the time of appeal. Code Civ. Pro., 1334. Where a surety company authorized by the laws of this State to do busi- ness is on the bond no other surety is necessary. Code Civ. Pro., 811. 121. Under wJiat circumstances may a respondent except to the sureties upon an undertaking? He may always do so if he sees fit. It is not necessary that the undertaking should be approved; but attorney for the respondent may, within ten days after the service of a copy of the undertaking with notice of the filing thereof, serve upon the attorney for the appellant, a written notice that he excepts to the sufficiency of the sureties. Within ten days thereafter, the sureties, or other sureties in a new undertaking to the same effect, must justify before the court below, or a judge thereof, or a referee appointed by the same, or a county judge. At least five days' notice of the justification must be given. Code Civ. Pro., 1335. 528 QUESTIONS AND ANSWERS. 122. What questions are brought up for review in an appeal to the Court of Appeals? An appeal to the Court of Appeals from a final judgment or from an order granting or refusing a new trial in an action, where the appellant stipulates that upon affirmance judgment absolute shall be rendered against him, brings up for review in that court only questions of law; but where the justices of the Appellate Division from which an appeal is taken are divided upon the question as to whether there is evidence supporting, or tending to support, a find- ing or verdict not directed by the court, a question for review is presented. In any action on an appeal to the Court of Appeals, the court may either modify or affirm the judgment or order ap- pealed from, award a new trial, or grant to either party such judg- ment as such party may be entitled to. Code Civ. Pro., 1337. Upon an appeal to the Court of Appeals from a judgment, re- versing a judgment entered upon the report of a referee, or a de- termination in the trial court; or from an order granting a new trial, upon such a reversal; it must be presumed that the judgment was not reversed, or the new trial granted, upon a question of fact, unless the contrary clearly appears in the record body of the judg- ment or order appealed from. Code Civ. Pro., 1338. c. To the Appellate Division of the Supreme Court. 123. When may a party appeal to the Appellate Division? An appeal may be taken to the Appellate Division of the Su- preme Court from a final judgment rendered in the Supreme Court or in any Superior City Court, prior to the first day of January, eighteen hundred and ninety-six, and from a final judgment ren- dered in the Supreme Court after said day, as follows: 1. \Vhere the judgment was rendered upon a trial by a referee, or by the court without a jury, the appeal may be taken upon ques- tions of law, or upon the facts, or upon both. 2. Where the judgment was rendered upon the verdict of a jury, the appeal may be taken upon questions of law. An appeal may be taken to the Appellate Division of the Su- preme Court, from an order, made prior to the first day of January, eighteen hundred and ninety-six, in an action upon notice, at a Special Term or Trial Term of a Superior City Court, or of the Supreme Court, or at a term of the Circuit Court, and from an order made at a Special Term or Trial Term of the Supreme Court, after said day. in either of the following cases : 1. Where the order grants, refuses, continues, or modifies a pro- visional remedy; or settles, or grants, or refuses an application to resettle a case on appeal or a bill of exceptions. 2. Where it grants or refuses a new trial ; except that where spe- cific questions of fact, arising upon the issues, in an action triable by the court, have been tried by a jury, pursuant to an order for PLEADING AND PRACTICE UNDER NEW YOEK CODE. 529 that purpose, as prescribed in section 971 of this act, an appeal cannot be taken from an order, granting or refusing a new trial, upon the merits. 3. Where it involves some part of the merits. 4. Where it affects a substantial right. 5. Where, in effect, it determines the action, and prevents a judgment, from which an appeal might be taken. 6. Where it determines a statutory provision of the State to be unconstitutional; and the determination appears from the reasons .given for the decision thereupon, or is necessarily implied in the decision. An order, made upon a summary application, after judgment, is deemed to have been made in the action, within the meaning of this section. Code Civ. Pro., 1346, 1347. 124. TVithin what time must an appeal to the Appellate Division be taken, and what is required to obtain a stay? An appeal, authorized by this title, must be taken within thirty days after service, upon the attorney for the appellant, of a" copy of the judgment or order appealed from, and a written notice of the entry thereof. Security is not required to perfect the appeal, but except where it is otherwise specially prescribed by law, the appeal does not stay the execution of the judgment or order appealed from, unless the court, in or from which the appeal is taken, or a judge thereof, makes an order, directing such a stay. Execution of a judgment for the recovery of money only shall not be stayed without security for more than thirty days after the service upon the attorney for the appellant of a copy of the judgment and writ- ten notice of the entry thereof. Code Civ. Pro., 1351. The appellant may also obtain a stay by giving security, as re- quired in an appeal to the Court of Appeals. Code Civ. Pro., 1352. Speaking generally, an appeal may also be taken to the Appellate Division from a County Court or any other court of record possess- ing original jurisdiction. Code Civ. Pro., 1340. d. To the 'Supreme Court. 125. What appeals may be taken to the Supreme Court? Appeals from inferior and local courts in the county of New York and in Buffalo may be taken to the Supreme Court. Code Civ. Pro., 1340. Appeals from the inferior courts of Manhattan and the Bronx in the city of New York are heard by the Appellate Term of the Supreme Court, composed of justices of the Supreme Court ap- pointed by the Appellate Division under the authority of section 1344. 34 530 QUESTIONS AND ANSWERS. XX. MISCELLANEOUS PROVISIONS. 126. What are ancillary letters testamentary, or ancillary letters of administration with the will annexed? They are letters granted by a Surrogate's Court upon a will be- queathing personal property made by a person who resided without this State at the time of execution, or at the time of his death, which has been admitted to probate in the foreign country or within the State or territory of the United States where it was executed, or where the testator resided at the time of his death. Code Civ. Pro., 2695. 127. What are ancillary letters of administration? . They are letters of administration granted by a Surrogate's Court upon the estate of an intestate who resided, prior to his death, without this State, and who left personal property within the jurisdiction of the Surrogate's Court granting the letters. Code Civ. Pro., 2696. 128. What must always be stated in an affidavit, upon an appli- cation to obtain an ex parte order? Under rule 25 of the Xew York Gen. Rules of Practice, when- ever application is made ex parte, on affidavit to a judge or court for an order, the affidavit shall state whether any previous appli- cation has been made for such order, and if made, to what court or judge, and what order or decision was made therein, and what new facts, if any, are claimed to be shown. And for the omission to comply with this rule, any order made on such application may be revoked or set aside. 129. How is a discovery. of books and papers obtained? By order of the court or judge authorized to make an order in the action, on a verified petition. Code Civ. Pro., 805. See Genl Rules Prac. 14, 15, and 16. INDEX. ABATEMENT, paRe nature of plea in : 281 of legacies, defined . 328 ACCEPTANCE. (See BILLS AND NOTES.') ACCESSION 294 ACCIDENT, ' denned . 431 no liability for 431 ACC OMMODATION PAPER*. 41 ADEMPTIC-v OF LEGACIES 323 ADMINISTRATION. (See NEW YORK CODE; WILLS.) ADVANCEMENT, defined .' 328 distinguished from ademption 328 ADVERSE POSSESSION. (See NEW YORK CODE; REAL PROPERTY.) AGENCY. (See AGENT; INSURANCE; PARTNERSHIP; PRINCIPAL AND AGENT; STATUTE OF FRAUDS.) principals, who may be 1, 2 agents, who may be 2 implied authority of agents 2, 3 ratification by principal 5-9 relationship of, exists when 10, 11 undisclosed principal 17, 18 termination of 18-20 relationship of, fiduciary 22-24 of wife for husband 201 of child for parent 203 as *a test of the existence of a partnership 249 AGENT. (See PRINCIPAL AND AGENT; TRUSTEE; RATIFICATION.) In general, delegation of authority by 1, 4 authority of, to execute sealed instruments 2 actual and incidental authority of 2. 3 termination of agency 18-20 can act for both buyer and seller, when 23 compensation of 24 compensation due from both, when 23 [531] 532 IXDEX. AGENT Continued: Liability to principal, Page. for delegation of authority 4 gratuitous agent, not liable for nonfeasance 20 only obliged to use what skill he has 21 when consignee for sale 21 for mixture of principal's funds with his own 21 for profits made at principal's expense 22-24, 25 for funds misapplied, barred by discharge in bankruptcy.. . . 37 Liability to third persons, on sealed instruments 9 on bills and notes 9, 10, 18 on simple contracts : 10 on contracts made for an undisclosed principal 17 ALIENATION, RESTRAINTS ON 336-340 See REAL PBOPERTY. ALTERATION. (See BILLS AND NOTES; EVIDENCE; SURETYSHIP.) AMBIGUITIES, PATENT AND LATENT. . * 233, 234 ANIMALS, liability of owner for injuries by 438, 442, 443 ANIMALS 'FERAE NATURAE, subject of larceny, when 168 title to 294 APPEALS, under New York Code . . .* 524 in bankruptcy . . . ; 38, 39 ARBITRATION, agreements for, favored 108 under New York Code 516 ARREST. (See NEW YORK CODE; TORTS.) without warrant 441 for felony 442 for misdemeanor 442 of judgment, granted, when 291 ASSAULT, defined 430 words alone not an * . . 430 whether action for, lies against one using excessive force to repel. 433 ASSIGNMENT, of commercial paper, overdue 50, 51 of what contracts, valid 104, 105 trust of chose in action distinguished from 458 payment of debt after notice of 458 under New York Code 489 ASSUMPSIT. ACTION OF. (See PLEADING AT COMMOX LAW.) ATTACHMENT. (See NEW YORK CODE; TORTS.) INDEX.. 533 B. Pa BAGGAGE 73, 74 BAILMENT. (See CABBIEBS; PERSONAL PBOPEBTY; SALES.) BANKRUPTCY. Jurisdiction, what court has 26 of State courts, how affected 26 in summary proceedings 37 of appellate proceedings. . '. .' 39 Voluntary proceedings, how begun, and by whom 26 by a partnership 26 partnership creditors 27 Involuntary proceedings, against whom may be filed '. 27 who may file 28 act of bankruptcy, what is 27, 28 Provable debts, claim for damages to property or person 28 unliquidated 28 liquidated by judgment '. 28 claim for conversion 28 against bankrupt indorser 29 against bankrupt maker of note, indorsers responsible 29 proved after dividend, effect 34 when to be proved 34 Trustee, election 29 title to goods purchased on conditional bill of sale 30 to goods procured by fraud 30 to trust funds " 31 enforcement of 37, 38 Exemptions, in accordance with State laws, when 31, 32 how claimed 31 insurance policies 32 Examination of bankrupt, , incriminating questions 32 as affecting discharge 32, 35 Preferences and liens, mortgage preferential in part materiality of intent, to prefer the creditor by the creditor to secure preference 32, 33 t lien, by attachment, judgment, etc., when dissolved by bank- ruptcy by mechanics' lien, not dissolved sale free of, by order of court "INDEX. BANKRUPTCY Continued: Sale of assets, Page. free of liens, effect of 33 Distribution of estate, priority claims 34 dividends 34 upon claims proved after dividend paid 34 Composition, by satisfaction of all debts. 35 by majority vote of creditors 35 effect of 35 Discharge, grounds for refusal of 35 false testimony of bankrupt, effect upon 36 failure to claim, effect of. 36 affects what kind of debts 36, 37 effect of, upon debt not scheduled 37 upon claims for conversion of money. .'. 37 is a bar but not an extinguishment of debt 37, 101 Summary proceedings, plenary suit necessary, when 37 jurisdiction of 38 against bankrupt by contempt proceedings 38 Appellate proceedings, when may be taken 38 methods of review 38, 39 jurisdiction of 39 BATTERY, defined .430 " BEST EVIDENCE " RULE 229, 230 BILL OF EXCHANGE. (See BILLS AND NOTES.) BILL OF LADING. (See SALES.) by agent without authority 3 stipulations in, will bind shipper, when 65 is a contract, and a receipt, and also represents the goods 70 BILLS AND NOTES. (See NEGOTIABLE INSTRUMENTS; PRIVATE COR- PORATIONS; MUNICIPAL CORPORATIONS.) In general, agent, when bound personally upon 9, 10 formal requisites of 40, 41 check, status of a 42 certificate of deposit, status of 42 consideration, necessary when 42 want of, may be shown, when 42 non-negotiable paper 43 alteration in, as a defense 48 overdue paper, transfer of 50, 5 1 demand note, when overdue 51, 57 INDEX. 535 BILLS AND NOTES Continued: In general Continued. Pa p voluntary destruction of, by holder, effect 51 days of grace 57 due diligence by holder of, may be waived 102 . corporations, liability of, on negotiable paper 127 not subject of larceny, at common law 168 executed by a partner, bind copartners, when 200 bank forwarding, for collection, guarantees solvency of collect- ing bank, when 453 Acceptance, how made 43 liability incurred by 43 conditional, defined 44 effect of 44 qualified, defined 44 effect of 44 supra protest, or " for honor " 44 Indorsement, in full, mode of 44 meaning and effect of 44, 45, 52 in blank, defined 45 " without recourse," defined 45 by one not a party to the instrument, effect 45 " irregular " or " anomalous," defined 45 if orged, effect of payment of bil] 49 discharge of liability of indorser, how effected 52, 53, 55 indulgence by holder to indorser, effect 52, 53 by partner, after dissolution of firm, does not bind former copa rtners 264 See also PRESENTMENT; PBOTEST; NOTICE OF DISHOXOB, infra. Transfer, delivery without indorsement, effect of 46 to bona fide purchaser 4619 of overdue paper 50, 51 by maker or indorser who has become the .owner, effect of. . 54-56 Purchase for value without notice, from thief before maturity 46 " legal " and " equitable " defenses, distinction 47 " value " defined 47 " notice " defined 47, 48 alteration a " legal " defense forged bill, effect of payment by drawee 49, 349 forged indorsement, effect of payment by drawee 49, 349 raised bill, effect of payment of after paper is overdue 50 - title gained by, before maturity, perfect after maturity also. . 50 536 INDEX. BILLS AND NOTES Continued: Discharge, Page. of maker or acceptor, how effected 51, 52 of indorser, when discharges subsequent indorsers also. . . . 52, 53 payment at maturity a discharge to maker, when . . . . : 54 to indorsers, when ^. . . 55 Retransfer, by maker who has paid before maturity 54 by drawer or indorser who has paid at maturity, effect of .... 55 Presentment, for acceptance, when necessary ; 56, note. for payment, when necessary and why 5ft whether necessary to hold guarantor of note 56 what is a sufficient 57 days of grace 57 delay in making, sometimes excusable 58 Protest, meaning of 58 how made 58 use made of 59 Notice of dishonor, should set forth, what 59 why necessary , 59 should be sent when and how 60 waiver of 102 BONA FIDE PURCHASER. (Sec BILLS AND NOTES; SALES; TRUST.) BURDEN OF PROOF. (See CARRIERS; EVIDENCE.) c. CASE, ACTION OF. (See PLEADING AT COMMON LAW.) CERTIFICATE OF DEPOSIT 42 CERTIFICATION OF CHECK 49 CERTIORARI, under New York Code 510-512, 515 CESTUI QUE TRUST. (See TRUSTS.) who may be 462 want of, invalidates trust, when 462 in charitable trusts 462 transfer of interest by 465 to two successive purchasers, effect 465 illustrations of above 465 death of 465, 466 dower rights of wife of 466 bankruptcy of 466 remedies of, against trustee 468 when trustee out o^f jurisdiction 469 against third person, who dealt with trustee 469 may elect to take proceeds of wrongful sale 469 statute of limitations bars remedv of, when 470 INDEX. 537 . Page. CHAMPERTY 122 CHECKS 42, 49 CHOSE IN ACTION. (See TRUSTS.) transfer of, for value and without notice 464 COMMON CARRIER. (See BILL OF LADING; SALES.) In general, must serve all comers without discrimination * 61, 72 sleeping-car company not a 62 regulations of, when binding on shipper or passenger. 64, 65, 75 negligence, liability for, cannot be avoided by contract. ... 65, 72 termination of liability by delivery 5-67 obligation to serve all comers, nature of 61, 68, 72 compensation, when right to, accrues 68, 75 prepaid, must be refunded, when 9, 351 reasonable, what is 70 legislature can fix rate of 81 lien of, extent 69, 296, 297 maritime, peculiarity of 71 Carriers of goods, as a rule must have possession 61 absolutely liable for loss of goods, when 62-65 excused from absolute liability, by act of God 62 by " inherent vice " of goods 62 by acts of the shipper 63 by seizure under legal process 63 by " stoppage in transitu " 63-64 by published regulations 64 by contract 65 bound only to use " ordinary " care, when 63, 65 liability, for delay or deviation 64 for acts of sub-carrier, when 66 when consignee not found 67 for misdelivery 67 Delivery, termination of liability by by first carrier to second terminates liability 66 must follow whose orders as to must be made to person intended excused when consignee not found on " second " bill of lading, carrier not knowing of " first " bill Remedies, whether consignor or consignee is proper plaintiff. carrier has burden of proof, when Carriage of passengers, passenger defined travellers on " free passes " 72 538 INDEX. COMMON CARRIER Continued: Carriage of passengers Continued : Page. duty to use " utmost care " in providing appliances. 73 liability for injury from employees, and from other passengers. 73 baggage, defined 73 when carrier liable for damage to 74 ticket^ denned 74 proper regulations as to, what are 75 COMMON COUNTS, ACTION ON 275 CONDITIONAL CONTRACTS. (See CONTRACTS.) CONFLICT OF LAWS, lex loci contractus governs validity of marriage 193 jurisdiction for divorce 194 will made in one State, affecting property in another 209, 320 will affecting real estate, must conform to lex loci rei sitae 320 interpretation of wills depends upon law of the testator's domicile. 320 CONFUSION 295 CONSENT, when a defense . . 431 a defense in action for seduction 431 under mistake of law 431 CONSIDERATION. (See BILLS AXD NOTES; CONTRACTS.) ''valuable," defined 47, 464 necessary in indulgence to principal in order to discharge one sec- ondarily liable ,. 53, 415, 416 in conveyances of land under Statute of Uses 308 CONSPIRACY. (See CRIMES.) CONSTITUTIONAL LAW f , In general, " persons," defined 76 " privileges and immunities " 77 arbitrary legislation unconstitutional 83 " Due process of law," as affected by Fifth Amendment of the Constitution 77 defined and illustrated, 78 punishment for contempt of court 79 relation of police power to 79 Police power, of States, effect of Fourteenth Amendment upon 79, 80 defined, in general 80, 81 regulations under, attitude of courts toward 81, 83 illustrations of exercise of 82 limitations on 80-83 cannot be bargained away 80 " Equal protection of 1he la its," as to foreign corporations 76 meaning of, illustrated 79, 83 INDEX. 539 CONSTITUTIONAL LAW Continued : Eminent domain, defined Federal government has the right of ^ public use, what is, a judicial question 84, (! what property is necessary for a public use, a legislative question g , all property is subject to right of ; 85, S'J " taking," what is a - Taxation, ground of right of .- for what purposes proper S.i Federal government and property not subject to, by States.. 60 nor State government or property, by Federal government. . . 87 power of, State can in part bargain away 83 Ex post facto laws, prohibited to both Federal and State governments 87 defined, and distinguished from retroactive laws 87 Obligation of contracts, Federal government can impair 88 charter of corporation is protected 8t change in remedy does not impair 8S defined 83 police power, exercise of, may affect 89 divorce as impairing 194 Commerce, regulation of, power of States as to 89, 90 legislation as to " trusts " 120 CONTEMPT OF COURT. (See BANKRUPTCY; CONSTITUTIONAL LAW; CHIMES. ) CONTRACTS. (See CONSTITUTIONAL LAW; CORPORATIONS; DOMESTIC RELATIONS; EVIDENCE; INSURANCE; QUASI-CONTHACTS ; SALES; SURETYSHIP. ) In general, who are incapable of making 91, 197, 199 " unilateral " and " bilateral," what are 91, 92 for benefit of third party; when suit can be brought and by whom 103, 104 assignable, what classes of, are 104, 105 warranties and representations. in, distinguished 109 of marriage 190-193 circumstances surrounding, may always be shown 233 differ from torts, how 423 Breach of contract. " in Jim inf." effect of 113 in a divisible contract, what is a 114. 1 '> " anticipatory breach." ri contribution, doctrine of 2 marshalling securities, doctrine of 2 subrogation, defined 2 discovery, bills of - interpleader, bill of, defined 2 when used ~ receiver, powers and duties of will be appointed, when - " cloud " upon title will suffer no right to be without a remedy 2 who comes into, must do so with clean hands who seeks, must do equity between equal equities, the law prevails follows the law will not assist those who sleep on their rights - 548 IXDEX. EQUITY Continued: In general Continued: Page. penalty distinguished from liquidated damages 182, 212 Limitations, Statute of, in 470 Accident, definition and examples of 212 penalty, relief against, given when 212 Mistake, relief against, given when 212 of law, relief against 212 Fraud (See SALES; TORTS.) is undefinable 213 relief against, given when 213 renders transaction voidable, but not void 213 remedies for, choice of 213 Specific performance, nature and object of 214 will be decreed, in what oases 214 of verbal contract, which should have been in writing, granted when 215 Injunctions, denned *. 215 mandatory and prohibitive, distinguished 215 when granted 215 ESCHEAT .' ' 302 ESTOPPEL. (See EVIDENCE.) title by, arises, how 315 breach of the covenant creating a, gives right of action, when, 315 EVIDENCE. (See NEW YOBK CODE.) In general, judicial notice, defined 216 extent of 216 instances of 216 of laws of the States 216 burden of proof, defined 217 " shifts," in what sense 217 presumption, effect of 218 of law 218 of fact . . . .-, 218 of death after seven years' absence, effect of 218 does not indicate time of death 218 admissions and confessions, distinguished 210 Avhy admissible 210 admissions, by acrent, when binding on principal 219 by transferor of overdue note 210 confession " voluntary." when 220 fact, questions of, decided, by court, when 220 verdict reversed as against evidence, when 221 INDEX. 549 EVIDENCE -^Continued : In general 'Continued: i*&g*. negligence, per se, what is 221 not evidence of, to repair, machinery a-fter accident. .221, -1. range of evidence to show, lies in discretion of court .... 222 similar accidents at same place, as evidence of 222 usual practice in the trade, as evidence of 223 character, of criminal may be shown, when 223 defined 223 may be shown in what civil cases 223 Rule against hearsay, and exceptions, hear.say, what is 223 when admissible as such . . . .' 224 why excluded 224 testimony given in another case, admissible when 224 dying declarations, scope of rule admitting 224 pedigree, exception as to, refers to what classes of facts 225 statements as to, must be made by whom, and when .... 223 matters of public and general interest, exception as to, rea- son of 225 hearsay evidence as to, admissible when 225, 22G ancient document " proves itself," when 226 " shop-book " exception, extent of 22G books of third p^sons, entries in, when admissible 226 admissible even in lifetime of person making 227 , declaration against proprietary or pecuniary interest, ad- ' missible 227 carries in all statements bound up in it 227 declarations as to mental or physical condition, admissible when ." 227 " res gestce" meaning of : 228 Opinion, " fact " and " opinion " distinguished 228 experts, proper method of questioning 228 of non-professional witmess, when Admissible genuineness of signature, proof of "Best evidence,'' rule, t "^O meaning of ' primary " evidence, classes of . .^ " secondary " evidence, classes of - when admissible to show contents of document degrees of - 230, note. Proof of authenticity of icritina*. genuineness of signature, proof of 2 execution of documents, how proved 2 exceptions to rule concerning 2 alterations, no presumption as to time of making 2 O9 I effect of - 550 INDEX. EVIDENCE Continued: "Parol evidence " rule, Pajre. .statement of, and of the reason of its existence 232 limitations upon operation of 232 verbal agreement connected with written, may be shown, when, 232 circumstances surrounding contracting parties or a testator, may always be shown 233 ambiguities, " patent " and " latent," discussed . , 233, 234 " extrinsic " evidence 234, not,?. Witnesses, husband and wife 'as 202 what persons are incompetent as 234 are " privileged " to refuse to answer what questions .... 32, 235 refreshing recollection of , 235 credibility of, attacked how 236 'discrediting one's own, permissible when 236 EXECUTION, under New York Code 522 EXECUTORS AND ADMINISTRATORS. (See WILLS AND ADMINIS- TRATION. ) of deceased partner, rights of 251-253, 272 distinguished from trustees 459 EXONERATION, in suretyship 412 F. FELLOW SERVANTS. doctrine of 13, 14 who are 14 "vice-principal doctrine 14 sufficient number of, duty of principal as to 15 FIXTURES . tf 320 FORBEARANCE, of suit, as consideration 99, 100 FORCIBLE ENTRY, defined 435 FORGERY. (See CRIMES.) of signature of drawer of bill which is paid by drawee to Hona fide holder; drawee cannot recover 49 of indorsement and payment by drawee as above; drawee can re- cover 349 of body of bill and payment by drawee as above; drawee can re- cover 349 -of indorsement after acceptance, drawee not liable to indorsee. ... 49 forged will, payment to executor appointed under, protected.... 326 IXDEX. 551 G. rase. GENERAL AVERAGE 71 GIFT, title by, how acquired . 294 donatio causa mortis, defined 294 as a conveyance of real property 307 uncompleted, does not create a trust 459, 460 GUARANTOR, of note, whether presentment of note at maturity necessary to hold, 56 GUARANTY. (See SUBETYSHIP.) 4 H. HABEAS CORPUS, under New York Code ( with form ) 510-512 HEARSAY EVIDENCE, RULE AGAINST, AND EXCEPTIONS THERETO. (See EVIDENCE.) HUSBAND AND WIFE. (See CONTRACTS; DOMESTIC RELATIONS; INSURANCE; MARRIED WOMAN; RliAL PROPERTY; TRUSTS.) each has insurable interest in life of other 240 right of husband in wife's personal property 293 dower and curtesy, defined 299 dower, right of, how lost or barred 303 I. IMPRISONMENT. (See ARREST.) what constitutes 441 INDEMNITY, distinguished from suretyship 400 surety's right of 408, 409 INDEPENDENT CONTRACTOR, who is an 12 INDICTMENT. (See CRIMES.) INDORSEMENT. (See BILLS AND NOTES.) INDORSER. (See BILLS AND NOTES.) INFANTS. (See DOMESTIC RELATIONS.) can act as agents whether they can appoint agents fc contracts of, voidable effect of new promise after coming of age, upon 101 capacitv of, to commit crime 153, 204 * r 101 marriage of disseized, can assert rights after coming of age may be trustees * removed from trusteeship, when * may bring action how. under New York Code 487 INJUNCTIONS. (See EQUITY.) under New York Code 496, 497 552 INDEX. INSURANCE. (See CONTRACTS.) In. general. Pace. contract of, defined 237 who may make 237 premium, nonpayment of, excused when 238, 239 assignment of policy of 241 waiver 241-243 cancellation of policy by the company 245 Warranty, representation and concealment, warranty defined 237 distinguished from representation 237 falsity of, fatal .- 237 representation, falsity of, avoids policy, when 237, 241 must be true at consummation of contract 237 oral, disregarded when 238 made by agent of company, acting for applicant, how far binding 241 concealment, defined 238 effect of 239 Insurable interest, must exist at consummation of contract -239 what constitutes an 239, 240 who has an 240, 241 husband and wife each have, in life of other 240 parent and ehild each have, in life of other 240, 241 assignee of policy must have 241 Insurance agents, powers of 241 when defined in policy 241 to act as age^t for an applicant 241, 242 knowledge of, when can be shown against company 242 waiver by, binding on company, when 241-243 Reinsurance, defined 243 liability incurred by reinsurer 243 Remedies, when loss occurs before issuance of policy 244 by reformation of contract 244 for fraud or mistake 244 in event of insolvency of the company 244 when insured committed suicide 245 by beneficiary who has murdered the insured 24.") limitation of time for enforcing, may be prescribed by Com- pany 245 arbitration, stipulation for, when enforcible 240 INDEX. 553 INTENT, e i u Pace, wrongful, when requisite m tort 499 1NTERESSE TERMINI INTEREST, payment of, whether shows a debt or a trust 457 INTERPLEADER. (See EQUITY; NKW YOKK CODE.) bill of, defined 210 when used 210 J. JUDGE, liability of, for judicial act 44g JUDGMENT, offer of, under New York Code 491 JURISDICTION, nature of plea" to the 281 facts essential to 471 in bankruptcy 26, 39 L. LEASE, for life, how created 307 for years, -how created 307 surrender of by operation of law 307 and release, conveyance by, described 309 by parol, contravening Statute of Frauds, effect of 310 lessee holding over, has what estate 310 covenants in, run with the land, when 312, 313 bind assignees of lessor and lessee, when 313 eviction, actual and constructive, denned 335 by landlord, effect on liability for rent 335 by stranger, effect on liability for rent 335 LIBEL, denned 438 distinguished from slander 438' publication of 438 special damage in 439 malice in 433 "" privileged communications " 439, 4^0 " fair comment " 440 LICENSE, denned 3 distinguished from easement 319 LIEN. (See BANKRUPTCY; CARRIERS; PERSONAL PROPERTY; SALES.) sale free of. in bankruptcy of common carrier, extent of 69 71 maritime 554 INDEX. .LIEN Continued : Paso. of bailee, extent of 296 divested, how , 296 advantages and disadvantages of a . .' 296 available, when : 296 specific and general, distinguished 297 on land, defined 304 of vendor of goods, exists when 380 divested, how 380 LIMITATIONS. (See STATUTE OF LIMITATIONS.) LIS PENDENS, object of filing 506 under Xew York Code 506 LUNATICS, cannot appoint agents 1 contracts of, binding in some States 91 cannot be held for crime 153 marriage of 191 mental capacity to make a will, what is sufficient 321 M. MAINTENANCE 122 MALICE, when requisite in tort 429 in defamation 439 in malicious prosecution 441 MALICIOUS PROSECUTION, essential facts in suit for 441 " malice " in 441 MANDAMUS, under New York Code : 512 MARRIAGE. (See DOMESTIC RELATIONS.) MARRIED WOMEN. (See HUSBAND AND WIFE.) can act as agents, when 2 can act as agent 2 cannot make contract 91 right of, to property of firm to which husband belongs 253 disseized, can assert rights after disability of coverture removed.. 306 can make will, when 321 can bring action when, under New York Code 488 MASTER (of vessel) 60, 61 MAXIMS IN EQUITY 211 MISTAKE. (See CONSENT; EQUITY; QUASI-CONTBACTS.) MORTGAGES. (See REAL PROPERTY; SALES.) MUNICIPAL CORPORATIONS, distinction between public and private character of 146, 147 legislative control of 146 powers, implied, what are 147, 150-152 distinguished from those of private corporation 147 INDEX. 553 MUNICIPAL CORPORATIONS Continued : I>aRO acts of firemen, police, etc., in performance of public duty, not liable for Hg defects in highway, towns and counties not liable for, at com- mon law 143 cities liable 148 149 damage from defects in public works, when liable for 149, 150 power to borrow money 150 to issue negotiable 'bonds or notes 150 " ultra vires " contract, how far liable upon 151 bonds of, with recital of authority to issue, are binding 151, 152 NECESSARIES. (See DOMESTIC RELATIONS.) NECESSITY, excuses a conversion, when *. 447 excuses a conversion, when 446 NEGLIGENCE. (See EVIDENCE; TORTS.) defined. 450, 451 whether there are degrees of 452 NEGOTIABLE INSTRUMENTS. (See BILLS AND NOTES.) assignment of, how- different from assignment of chose in action. . 40 accommodation paper, defined 41 indorsement, mode of, and effect 44-46 transfer of 46-5 1 certificates of stock are not 140 'bonds, payable to bearer or to order, are .' 1.41 warehouse receipts are, when 399 NEW YORK CODE, PLEADING AND PRACTICE UNDER. .(See PLEADING AT COMMON LAW.) In general, jurisdiction, facts essential to ' 470 civil action, how commenced 470 joinder of causes of action 477 negative pregnant, defined 483 assignments, what are, valid 489 parties 487 bill of particulars 489 subpoena 490 attachment; arrest; deposit, etc., of property; injunction; receivers. (See NEW YORK CODE, Provisional remedies.) State writs 51 supplemental pleadings 4 supplementary proceedings 5 Statute of Limitations 5 executions appeals ancillary letters of administration 5 discovery, how obtained 53t 556 INDEX. NEW YORK CODE, PLEADING AND PRACTICE UNDER Con.: Actions by State icrtt, Pase. enumerated 510 habeas corpus to testify, when granted 510 habeas corpus and certiorari to inquire into cases of detention, 510 discretion in granting 511 form of 511 certiorari, issues instead of habeas corpus, when 512 mandamus, general provisions as to 512 obtained how 512, 513 prohibition, general provisions as to 513 proceedings upon 514 assessment of damages 514 certiorari to revie.w, object of 515- issued when -. 515 Answer, must contain what ' 481 denial, facts provable under 482 partial defense, how set up 482 numerous defenses .' 482 equitable defenses 482 admission in, effect of 483 negative pregnant 483 party must, or demur 483 Appeals, when allowed 524 how taken 524 security on, when limited or dispensed with 524 when unnecessary 524 to the Court of Appeals, allowed in what cases 525, 526 time limitation on 526 what security necessary in 526 what security necessary to stay execution pending 526 undertaking in, executed and served, how 527 what questions reviewable on 528 to the Appellate Division of the Supreme Court, when allowed, 528 time limitation 'on 52f) stay obtainable on, when 529 to the Supreme Court, lie, when 52!) Arbitration, denned 516 what may be submitted to 516 Bill of particulars, defined 489 when granted 400 procured how 490 Complaint. (See PLEADING AT COMMOX LAW.) must contain what 477 ioindcr cf causes of action in . 477 INDEX. 557 ;\E\Y YORK CODE, PLEADING AND PRACTICE UNDER Con.: Counterclaim, Paee. denned 433 may be set up, when 4g3 rules regulating 483) 434 Demurrer, grounds of ^ 439 must specify what 481 to counterclaim, grounds of 481 to reply, grounds of ' 431 Evidence, parties and interested persons, competency of, to give 507 husband and wife, competency of, to give 507 professional confidences, privileged when 507 Executions, enumerated and classified 522 may issue, to what counties 522 general requisites of 522 requirements of, against property 523 against the person 523 when may issue of course 523 sale on, how conducted 524 Forms, summons 472 affidavit of service of summons and complaint 474 verification . . . 479 notice of appearance and demand 480 requisition in replevin 503 writ of habeas corpus 511 writ of certiorari 512 Interpleader, obtainable by defendant, in what actions 506 on showing what 506 Limitation of actions. (See STATUTE OF LIMITATIONS. ) defined 517 acts on the remedy 517 must be pleaded -. 517 actions to recover real property 518 other actions 518-521 time excluded for disabilities, in general actions t 52') in actions for recovery of real property 520, 521 adverse possession, what constitutes 521 Us pendens, object of filing 506 must contain what 5 filed where 506 558 INDEX. NEW YORK CODE, PLEADING AND PRACTICE UNDER Con.: Lis pcndcns Continued : Page. should be filed when 506 obligatory, when 506 Motions on the pleadings, when made 487 grounds of 487 Notice of appearance, how served 480 form of, and demand . , 480 Offer of judgment, how made t 491 must contain what " 491 effect of failure to accept 491 Parties, infants, how made 487 married women, how made 488 executors, how made 488 .poor person, how may sue 488 person refusing to join as plaintiff, how reached 480 assignee, action brought by, how 489 Pleadings, in general, summons, requisites of 471 form of 472 civil action, how commenced 471 when defendant's name unknown . 473 when no personal claim made -against a party defendant .... 473 who may serve 473 service, party leaving State may provide for, how 474 negative pregnant, defined 483 counterclaim, defined 483 may be set up, when 483 rules regulating 483 reply : 484 supplemental pleadings 487 general provisions as to 485 frivolous and sham 485 verified, may not be struck out 485 amendments of, when granted 485 copy must be served 486 * variance, material when 486 parties 487 bill of particulars defined 489 how procured 490 1 subpoena 490 duces tecum 490 replevin 502 State writs . ,..'.., .510 INDEX. 559 NEW YORK CODE, PLEADING AND PRACTICE UNDER Con.: Provisional remedies, p age enumerated 493 arrest, allowed when 493-496 papers necessary for 495 exemption from 495 bail to relieve from, qualifications of 49ft injunctions, when granted 496, 497 classification of 496 vacation of 497 attachment, when granted 498, 499 affidavit in . 500 jurisdiction for 501 vacation of 501 modifying warrant of 501 of partnership property 502 deposit, delivery, or conveyance of property, provisions relat- ing to : 505 receivers, general provisions as to 504 Replevin, how commenced 502 what papers necessary for 502 affidavit must allege what * . 503 defendant's rights in 504 Reply, when necessary 484 court may require, when 484 matters which may be joined in 484 Subpoena, how served 490 duces tecum, denned 490 Summons, service on foreign corporation 475 on domestic corporation , 475 substitutes for personal service of 476 Supplementary proceedings, affidavit necessary to obtain order to examine a judgment debtor 516 Tender, how made 4 effect of 49 Time allowed for various proceedings, how computed can be extended, when notice, of motion, what is sufficient .... of argument, what is sufficient 4 of taxation of costs, what is sufficient 403 of trial, what is sufficient 493 560 INDEX. XE\V YORK CODE, PLEADING AND PRACTICE UNDER Con.: Time alloucd for serving pleadings Continued: ra9 by breach of trust, when 2 ~ partner has not, after dissolution, by indorsement of bill or note '. 264 by confession of judgment 254, 268 Special partner, risks only his contribution " can sue firm, or be sued by it - 3 562 INDEX. PARTNER Continued: Special partner Continued : Page. position of, as to firm creditors 273 as to the copartners 273 Dormant partner, bound by dealings after withdrawal, when 263 may be joined as plaintiff in suit by firm 267 PARTNERSHIP. (See PABTNEB.) In general, distinguished from corporation 123, 247 attributes of 247, 248 legal title to property of, is in individual members 250, 251 deed to X., Y. & Co., effect of 250 personal property of, is held jointly by partners 251 real property of, is held in common. 251 firm having common partner with another firm can sue latter, 258 one partner can bind copartners, on sealed instrument, when 259, 260 on negotiable instrument, when 260 on simple contracts, when 261 release of one partner by creditor, releases the others 266 " notice to one partner, notice to all " 266 majority can bind objecting minority by contract, when 268 torts of partner, liability of copartners for 269 breach of trust, liability for 270 winding up 271, 272 profits and losses, apportipnment of 271 duties of partners to copartners 272 attachment of property of, under New York Code 502 Existence of a partnership, profits, participation in, as a test of 247, 248 the " agency " test of 249 true test of 249 Firm as a " legal entity" one partner cannot sue firm 249, 258 deed to X. Y. & Co., effect of 250, 251 firm cannot, as a rule, prove against estate of bankrupt partner 257 firm having common partner with another firm can sue latter. 258 Quasi or nominal partners, relation discussed 250 separate creditors of the real trader, rights of 250 creditors of the ostensible firm, rights of 250 Firm creditors, on judgment against one partner only, can levy upon what property 254 can sue one partner alone 255 can participate in separate assets of a bankrupt partner, when 27. 256 INDEX. 553 PARTNERSHIP Continued : Firm creditors Continued: PtLKe can recover from estate of deceased partner without resort to survivor, when 27 256 general assignment for benefit of, executed by one partner only, binding -when 265 release by, of one partner, releases others 266 Separate creditors, levy of execution by, upon firm property 254 who take firm property in payment, must restore it 269 Dissolution, effected by transfer of interest of one of two copartners to the other 253 no notice of, effect on rights of creditors 262-264 dealings after, by a new firm, bind former partners, when.. 262 by remaining partners, bind estate of bankrupt partner, when 263 by survivor, do not bind estate of a deceased partner 263 by remaining partners, bind estate of partner who has become insane, when 263 by remaining partners, bind dormant partner who has withdrawn, when 263 by bankruptcy or death of one partner; survivor has sole right to wind up business 264 terminates right of partner to bind copartners by indorse- ment . 264 grounds for, summarized 270, 271 settlement of accounts after 271 Judicial proceedings, one partner may begin, in name of all the partners 267. on firm contract, must be in the name of all the partners. . . . 267 against firm, service on one partner sufficient, when 267 to recover firm property conveyed to separate creditors 269 against firm, for tort of partner 269 for breach of trust 270 PAYMENT, by maker, or indorser of note, discharges subsequent parties, when 52-54 of note before maturity, when a defense 54 of note at maturity, a discharge, when 54 presentment of note for, why necessary 56 to one partner of debt due firm 268 to executor under a forged will, protected 3 of money by mistake 347, 3; in cash, effect on passing of title of goods sold made as directed by seller, is valid to ao-ent intrusted with goods to sell, valid, when 398 5G4: IXDEX. PERPETUITIES, RULE AGAINST ...... . .................... 341-345 See REAL PROPERTY. PERSONAL PROPERTY. (See LIEN ; REAL PROPERTY; SALES.) In general, what is, within definition of larceny ....................... 168 definition and classification of .............. ............... 293 donatio causa mortis, defined .............................. 294 pledge of, discussed ....................................... 297 defense of, taking life in ............................. 433, 434 using force in ................................... 433, 434 recaption of ............................................ 434 torts affecting ............... -. ....................... 445147 creation of trust of ....................................... 461 deposit of, in court, under New York Code ................. 505 Acquisition of tille to, by marriage .......................... .- ............. 198, 293 by judicial decree ........................................ 294 by adverse holding ....................................... 294 by occupancy ............................................ 294 by gift ................................................. 294 by accession .............................. , ............. 294 by confusion ............................................ 295 Possession, sheriff, who abuses his right of, is trespasser ab initio ...... 295 sheriff can enforce his right of, against whom .............. 296 by bailee, can be retained to enforce payment for services, when ................................................ 295 must be retained or lien is divested ......................... 296 given by thief, can be retained against owner, when ......... 296 PLEADING AT COMMON LAW. (See CRIMES; NEW YORK CODE.) In general, declaration, general requisites of .......................... 277 demurrers, nature and effect of ........................ 277-280 dilatory pleas, defined and classified ........................ 281 traverse, general requisites of a ............................ 281 the four classes of, enumerated ........................ 282 general issue, nature and effect of, in the various actions. .282-285 specific traverse, nature and effect of, in the various % actions .......................................... 282-2S5 special traverse, definition and object of .................... 285 replication de injuria ..................................... 286 pleas of confession and avoidance, use of .................... 286 classification of ...................................... 286 use and effect of, in the various actions ............ 2S7-2S8 duplicity, rule as to, discussed ............................ 289 departure, defined ........................................ 280 when fatal ......................................... 280 a defect in substance . . ............. 290 565 PLEADING AT COMMON LAW Continued : In general Continued: Pa new assignment, nature and object of 290, 291 can be used, when 290 Case, the general issue and the specific traverse in 284 pleas in excuse in ' 288 Debt, the general issue and the specific traverse in 283 pleas in excuse in 287 Demurrer, nature of 277 special, distinguished from general demurrer 278 office of 278, 280 includes general demurrer 279 is not a plea 279 admits truth of what facts alleged in prior pleadings 279 opens whole record for defects in substance, when 280 Detinue, the general issue and the specific traverse in 284 pleas in excuse in 288 Forms of actions, defined, debt , 274 % detinue 274 covenant 274 special assumpsit - 275 general assumpsit 275 trespass 275 '. trover 275 replevin 2 case 276 ejectment ^ "*" General assumpsit, the general issue and the specific traverse in 283 987 pleas in excuse m - Motions on the pleadings, arrest of judgment, granted when 2 effect of judgment non obstante veredicto, granted when repleader, granted when 2 r oV"> effect of Replevin, the general issue and the specific traverse in - Special assumpsit. the "eneral issue and the specific traverse in 2S7 pleas m excuse in Trespass, the general issue and the specific traverse in - ' pleas in excuse in 566 INDEX. PLEADING AT COMMON LAW Continued : Trover, Page . the general issue and the specific traverse in 284 pleas in excuse in 288 PLEDGE. (See PERSONAL PROPERTY; SALES.) POLICE POWER. (See CONSTITUTIONAL LAW; CORPORATIONS.) PRESCRIPTION, TITLE BY. (See REAL PROPERTY.) PRESUMPTION. (See EVIDENCE; REAL PROPERTY; SALES.) of mental soundness .' 217, 218 defined 218 effect of a, as evidence ; 218 of law and of fact 218 of death after seven years' absence 218 as to time when alteration of a document is made *. . . . 231 arising from bequest to one in fiduciary relation 322 as to passing of title in sales 364-367 PRINCIPAL AND AGENT. (See AGENCY; AGENT.) In general, deviation of agent from instructions 4 ratification of unauthorized act 5-9 relationship of, exists when . 10-12 termination of relation 18-20 relationship of, fiduciary 22-24 collusion of agent with third party, remedies of principal, 24, 25 principal bound by admissions of agent, when 219 Liability of principal to third persons, -for act of agent contrary to orders 3 substantial performance of authority 4 for torts of agent, when 11, 12 for act of independent contractor, when 12 criminally liable, when 13 after authority of agent revoked 18-20 when third party colludes with agent 25 Liability of principal to agent, for injury by fellow-servant : 13-16 for lack of suitable appliances 15 for lack of sufficient number of fellow-servants 15 when agent knows of defects 16 under Employers' Liability Acts 16 may generally revoke authority 18 "but not when agency coupled with an interest 18, 19 for agent's compensation 24 PRIVATE CORPORATIONS. (See MUNICIPAL CORPORATIONS.) In general, cannot go into voluntary bankruptcy 26 are " persons," but not " citizens " 76, 124 defined . , 123 INDEX. 567 PRIVATE CORPORATIONS Continued: In general Continued : Pajce. classified 123 partnerships, different from, in what respects. . 123 are persons, distinct from their stockholders 124 prohibition against acting as such without authority, at common law 125 liability of, for torts 130 for " ultra vires " torts 130 for crimes 130 for punitive damages 181 for money borrowed contrary to charter .-. 352 shares of stock in, are personal property 293 Creation, by special charter not generally necessary 125 charter must be accepted by corporators 125 de facto corporations, defined 125 recognized as legal when, and why 125, 126 who can object to operations of 125 stockholders in, personally liable, when 126 Powers, general rules of construction : 126, 147 in derogation of common right, strictly construed 127 exclusive rights valid, when 127 as to the issue of negotiable paper, test 127 to mortgage or sell franchise or property 1 to buy its own stock 1 ultra vires, defined *?* Dissolution, not effected by nonuser of corporate rights 1 methods of, summarized 1 effect of, on property of the corporation 132 Legislative control, charter is a contract police power, corporations subject to 131, 1' repeal of -charter, effect of, on property rights 1 alteration of charter by legislature, when and in what re- 1 T? spects, possible Unauthorized acts, validity of (TOTBA VIBES), ultra vires, defined unanimous concurrence of stockholders in, effect of whether such acts are absolutely void .1* T_ .......... 134 loo binding, when . . knowledge by third party, effect of specific performance, when will be ordered W prevention of, by dissenting stockholder Stockholders, .- ^j decision of majority binding, when . right of, to sue on behalf of corporation, exists whe 568 INDEX. PRIVATE CORPORATIONS Continued: Stockholders Continued : Page. conditions precedent thereto 137, 138 when collusion by directors exists 138 denied to one who hajs acquiesced in the situation 139 but not to his transferee who did not know of the ac- quiescence 139 transfer of stock by, how far analogous to that of negotiable paper 139, 140, 144 is between an ordinary assignment, and a transfer of a bill or note 139, 140 certificates of stock are not negotiable instruments 140 bonds payable to bearer or to order are negotiable 140 right of, to profits, before declaration of dividend 140 after such declaration 140 right of, to compel declaration of dividend 140 to agree to vote in a certain way. 141 liability of, to account for capital divided as dividends 142 on " bonus " stock, and ground, thereof 143 liability of purchaser of " paid-up " stock 144 payment for stock in land or services, when valid 144 liability by statute for corporate debts. 145, 146 nature of obligation. '. . . 145 enforceable against stockholder after sale of stock, when 145, 146 Creditors, right of, to interfere with management of " going " con- cern 110, 142 to follow capital, which has gone back to stockholders as dividends or otherwise 142 right to compel payment of stock subscriptions in full 143 ground of 143 enforceable by what creditors 144 as against purchaser of " paid-up " stock 144 right to collect corporate debts from stockholders, statu- tory 145, 146 PRIVILEGED COMMUNICATIONS. (See EVIDENCE; TORTS.) PROBATE. (See WILLS AND ADMINISTRATION.) PROCEDURE, CIVIL. (See PLEADING AT COMMON LAW; NEW YORK CODE. ) PROCEDURE, CRIMINAL. (See CRIMES.) PROFIT A PRENDRE, right of, distinguished from easement 316 of pasture, defined 316 of estovers, defined 316 PROHIBITION, WRIT OF, under New York Code ." 513 PROMISSORY NOTES. (Bee BILLS AND NOTES.) INDEX. 569 PROPERTY. (See PERSONAL PROPERTY; REAL PROPERTY.) PaKe PROTEST 58 PROXIMATE CAUSE. (See TORTS.) PUBLIC CORPORATIONS. (See MUNICIPAL CORPORATIONS.) PUBLICATION, of will, defined 321 in slander and libel 43g PURCHASER - FOR VALUE WITHOUT NOTICE. (See BILLS AND NOTES; SALES; TRUSTS.) defined .47, 48, 464 of bill or note, before maturity, acquires perfect title, when 46-47 takes subject to " real " defenses 47 after maturity acquires perfect title, when 50, 51 of goods, from one holding a legal title voidable by true owner, protected 397, 463 from trustee, protected 463 buyer from a, also protected, though having notice of defect 463 of chose in action, whether gets good title 464 of equitable interest, from cestui que trust 465 Q. QUASI CONTRACTS, In general, nature and basis of obligation 346 obligation of, is independent of any agreement 346 action on, sometimes concurrent with action on the contract itself 352, 353 Mistake, of fact, a ground of recovery 347 of law, generally not a ground of recovery 347 discussed 347 no recovery for, unless defendant is unjustly enriched 348 payment by, to agent, when recoverable 348 of bill having drawer's signature forged, not 'recover- able 40, 349 of bill having forgery in body of instrument, is recover- able .34!> of bill having forged indorsement, is' recoverable as to title of chattel sold, implied warranty nevertheless.. as to title of land sold, no warranty implied as to existence of subject-matter of sale, effect 348. 350 Benefits conferred, recovery for, when conferred in pursuance of contract 3 without request, but intentionally, allowed when by improvements on land, occupied under oral agreement to convey, allowed when made under mistake as to title at request, but not in performance of contract . under belief that contract for the services exUt.-l 570 INDEX. QUASI CONTRACTS Continued : Recovery, when defendant has failed to perform contract, Page. defendant relying upon Statute of Frauds 350, 351 not allowed unless defendant has been benefited 351 allowed, if performance is impossible 351 not allowed, of money paid on illegal contract 351, 352 exceptions to foregoing rule 352 of money loaned corporation contrary to charter .- 352 allowed, on tJie contract, when failure to perform is wilful . . 352 Recovery ichen plaintiff has failed to perform contract, not allowed, when failure wilful 353 when defendant is still ready to perform 354 allowed, for substantial performance, breach being uninten- tional 353 when performance of contract impossible 354 even if defendant is not benefited, when 354 "Waiver of tort" means election to sue in tort or assumpsit 357 goods stolen and sold, action for money had and received, allowed 357 goods converted, action for goods sold, allowed where 357 contract avoided for fraud, assumpsit for goods sold, allowed, 358 dispossession of .real estate, common counts for rent not al- lowed, why 358 joint tort-feasors, election of remedy against each 358, 359 Recovery of money paid under compulsion, under a judgment, reversed later. on appeal 359 to avoid illegal arrest 359 to avoid injury to business 359 to induce performance of duty, e. g., by a sheriff 359 R. RATIFICATION. (See AGENCY; PRINCIPAL AND AGENT.) needs no consideration 5 who can ratify 5 whether a forgery can be ratified 5 ineffectual, when . 6, 7 irrevocable ' : 6 principal cannot ratify in part 7, 8 oral, of sealed instrument 7 what constitutes 8 of infant's contract 206 HEAL PROPERTY. (See EASEMENTS; EVIDENCE; HUSBAND AND WIFE-, LEASE-, XEW YOBK CODE; TORTS; TRUSTS; WATEB AND WATERCOURSES; WILLS AND ADMINISTRATION.) In general, feudal system, outlined . 298 land tenure in United States 298 INDEX. 571 REAL PROPERTY Continued : In general Continued : Page- freehold, defined 298 estates classified, according to quantity of interest 299 according to time of enjoyment 300 according to number of owners 301 fee simple, defined 299 fee tail, defined 299 dower, defined 299 curtesy, defined .' 198, 299 estates for years, at will, and at sufferance 300 reversions and remainders 300 estates in severalty, joint-tenancy, and in common, defined. . . 301 seisin and disseisin 301 livery of seisin 301, 307 " descent " and " purchase," title by, distinguished 302 person under a disability to sue, disseisin of, effect 306 " exception " and " reservation," defined 310 water rights 318, 319 license and easement, distinguished 319 emblements, defined 333 include only fructus indiistriales 333 ejectment, action of, described '. 276, 334 waste, liability for, arises, when 334 is either voluntary or permissive 334 recaption of 435 occupier of, care required of, toward travellers on highway. . . 436 toward trespassers 436 toward licensees 437 toward invited persona 437 trespass upon 442 by animals 442, 443, 446 by necessity, excused 443 dangerous use of, liability for 4 fire and explosions upon, liability for 4 creation of trust of 461 Acquisition of title to, loithout conveyance, title by dower and curtesy 2 title by descent and by purchase, distinguished 3 title by escheat 3 title by accretion 3 canons of descent, stated how far of force in United States 302, 3' degree of relationship adverse possession, title by, how gained is perfect, whon 304. 305. 3 includes constructive possession can be made by tacking two successive disseisins, where. 306 572 INDEX. REAL PROPERTY Continued : Acquisition of title to, without conveyance Continued: Page. gained by lessee against lessor, how 305 gained by innocent, though tortious, possession 305 against person under disability to sue, when perfect 306 title by prescription, how gained 304 based originally on a " lost grant " 304 enjoyment of, confined strictly to the user by which it arose 317 Voluntary conveyances, inter vivos, primary conveyances, enumerated 306 defined 306, 307 secondary conveyances, enumerated 306 denned 307 surrender of estate in possession, how effected 307, 308 Statute of Uses, object and scope of 308 forms of conveyance under 308 by bargain and sale 308 iby covenant to stand seized 308 by lease and release 309 forms of. prevailing in United States 309 description of land by monuments, and by distances, former prevail 309 description bounding " on " highway or stream, conveys to the center line 309 "exception," "reservation" and "implied grant," contrasted, 310 what easements pass without mention 311 covenants of title in deeds, described 312 breach of, action for, accrues when 312 covenants in leases, run with the land, when 312, 313 covenants (other than for title) in deeds conveying fee, run with the land, when 313 deed, execution of, includes signing, sealing and delivery.... 314 sealing of, what constitutes 314 " delivery " of, a question of intention 314 must be accepted by grantee 314 in escrow, how made, and effect of 315 title " by estoppel," meaning of 315 eviction of one holding by, gives right of action, when. . . 315 title by dedication, essentials of 316 title to incorporeal hereditaments, how acquired and how ex- tinguished 316, 317 Fixtures, definitions of 329 whether real or personal estate, or neither 329 what things are, generally depends on intention of person making annexation 329 as between mortgagor and mortgagee 330 INDEX. 573 REAL PROPERTY Continued : Fixtures Continued : p affe as between landlord and tenant 330 " trade fixtures," liberal rule concerning 330 Mortgage, at common law, created what estate 330 rights of mortgagor and mortgagee under 330 " equity of redemption," origin of 331 absolute deed may be shown, by parol, to be a 331 distinguished from a contract of repurchase 331 "once a mortgage, always a mortgage," explained 332 is personal property 332 equity of redemption is a legal estate 332 foreclosure of, " strict " 333 " equitable " 333 passes upon an assignment of the debt as an incident thereto, 461 Restraints on alienation 336-340 forfeiture on alienation 336-338 prohibition of alienation 338-340 spendthrift trusts 340, 466 Rule against perpetuities 341-343 charitable gifts 343, 344 cypres 344 definition and history 341 gifts to a class 345 powers of appointment 342, 343 RECEIVER, appointment and duties of 210 of partnership, will be appointed, when 271 tinder New York Code 504 RELEASE REPLEADER 292 REPLEVIN, ACTION OF. (Sec PLEADING AT COMMON LAW.) under New York Code 502 REPRESENTATION, in contract, test of what is 1 breach of, effect 1 in insurance, meaning of - falsity of, effect 237. - in action for deceit 453 > 454 RESTRAINT OF TRADE. (See CONTRACTS.) RESTRAINTS ON ALIENATION 336-340 See REAL PROPEKTT. REVOCATION, 18 of agency of win : *- 825 RULE AGAINST PERPETUITIES See REAL PROPERTY. 574: INDEX. S. SALES. (See BANKBUFTCY; CONTBACTS; DAMAGES; EQUITY; STATUTE OF FRAUDS; TRUSTS.) In general, Page. defined 360 essentials of a sale 360 caveat emptor, applies when 360, 375, 376 of goods which have ceased to exist, impossible 360, 361 of anticipated crops, valid when 361 of goods not owned by seller, but acquired later, title passes when .' 361 place where sale becomes complete, how determined 368 payment must be on delivery, when : 372 voidable, on what grounds ' 373 by executor, pass good title 327 by sample, of goods " to arrive " 37;> lien of vendor, exists when 380 divestedhow 380 buyer stands in shoes of seller as to title, when 384 bona fide purchaser, gets good title, when 383, 384, 397 who is 397, 398. possession of goods retained by seller is a badge of fraud, when 396, 397 Factors' Acts, general provisions of, summarized 397, 398- buyer not protected by, when 39S payment to agent intrusted with goods to sell, valid when. . . . 398 vendor's liability to third persons for injury from goods sold. . 435 Caveat emptor, doctrine of, applies, as a general rule 360 applies, when there is an opportunity of examination 376 unless seller is manufacturer and defect not apparent. . . 376 applies to sale where seller has no title 384 Sale, distinguished, from bailment, test 362 from pledge or mortgage 363 from consignment 36$ from agreement to sell 364 The passing of title, when vendor acquires title after the sale 361 subject important, why 363 depends solely upon intention of parties 363, 367 on sale of specific chattel, unconditionally 364 cash payment, as affecting 364 on sale of specific chattel, with conditions precedent 364 where chattels are part of uniform mass 365 by subsequent appropriation, what is sufficient appropriation, 366 when goods are to be manufactured 366" when seller ships goods, but reserves jus disponendi 367 INDEX. 575 SALES Continued: The passing of title Continued: Page determines the place where sale occurs 368 in conditional sales, does not take place until conditions prece- dent are performed . 382 buyer acquires only what title seller has 384 fcorwi fide purchaser gets good title, when 384 Delivery, sufficient, where contract is silent, if goods are at disposal of buyer 368 at what place, sufficient 368 must be actually made, when 368 within what time sufficient 369 invalid, unless buyer can inspect goods 370 by installments, requisites of 370 constructive, sufficient when .' . 370 denned 370 and payment, must concur, when 372 Acceptance, denned 371 distinguished from " receipt " 37 1 once made, binding 371 is waiver of breach of warranty, when 372 Breach of contract, by seller, remedies for, if occurs when title has not passed 373 if occurs when title has passed 374 of warranty, meaning of 374, 375 distinguished from warranty in contracts 374 whether buyer has right to return goods 374, 375 of implied warranty, that goods shall be merchantable. . 375, 376 waiver of, by acceptance 376 of express warranty, not waived by acceptance 376 in quality of goods made to order, remedies of buyer. . . . 376, 377 Breach of contract, by the buyer, Ibv refusal to accept or pay for goods, remedy of seller. . . 377-380 by refusal to accept article specially made to order, measure of damages for 3 defenses in action upon 3 vendor having possession -can sell goods, after 379 Conditional sales, title of trustee in bankruptcy denned 38 distinguished, from bailment 3 from lease 3 from mort.arajje from consignment passing of title in conditions precedent must be performed or title does not pass, 31 576 INDEX. SALES Continued : Conditional sales Continued: Page. illustrations of foregoing 382 sale on condition subsequent, title passes at once 383 rights of bona fide purchaser from vendee in 383 third parties dealing with vendee in, rights of 383-384 possession given to vendee, title reserved, vendor is protected. 383 but statutes cover this case 383 Stoppage in transitu, right of, defined 63, 64 who has 385 may be exercised, when 385 not destroyed by part payment for goods 385, 386 terminates, when 386 defeated by a sale or pledge by consignee to bona fide pur- chaser, when 386-388 Fraud. (See TRUSTS). title gained by, bona fide purchaser of, protected. . . . 384, 385, 387 possession by vendor after sale of goods is badge of, when. . . . 396 by buyer, title does not pass, when 397 SALVAGE, denned , 71 compensation for 71 SATISFACTION by gift in will, denned 328, 329 distinguished from ademption and advancement 328, 329 SEALED INSTRUMENT, agent's authority to execute 2 unauthorized execution of, how ratified 7 agent, When bound personally upon 9 consideration unnecessary in 97 third party benefited by, cannot sue upon it 104 bonds of corporations payable to bearer or to order, have all quali- ties of negotiable paper 140 municipal corporations, power of, to issue 150-152 executed by a partner, bind copartners, when 259, 260 bind the partner himself, when 260 " sealing," what constitutes 314 SEDUCTION, consent a defense in 431 SEISIN. defined 301 livery of. defined 301 SELF-DEFENSE. (See CRIMES: TORTS.) SET-OFF. (See NEW YORK CODE.) against payee of note, whether purchaser after maturity subject "to ... .' 50 > 51 suretv's right to use principal debtor's claim as 412 INDEX. 57? SLANDER. (See CRIMES; TORTS.) SPECIFIC PERFORMANCE, PaKe of " ultra vires " contract, will be ordered, when 136 nature and object of 214 decreed, when 214, 215 SPENDTHRIFT TRUSTS 340, 466 STATUTE OF FRAUDS. (See REAL PROPERTY; SALES.) In general, specific performance of verbal contract which should have been in writing under, enforced when 215 lease by parol contrary to, effect of 310 effect of, is upon remedy only 396 When a defense to a surety 404-408 effect of, upon creation of trusts 460 As to agency, agent may make memorandum 5 memorandum must be made before termination of authority. . 18 del credere agency may be created orally 22 As to sales, reasons for passing the statute 388 section 17 of statute, quoted 389 " sale of goods," how construed 389, 390 " goods, wares, and merchandise," denned 390-392 " price of ten pounds," defined 392 " acceptance," time of 392 defined 393 and receipt, necessary 3 " actual receipt," what constitutes 3 " earnest," distinguished from " part payment " 393, 3! " note or memorandum," must contain what terms of sale 3 need not be expressly made as such 3 may consist of several papers 3 agent to sign, who may be 39( STATUTE OF LIMITATIONS, new promise after action barred by, how far binding 101, H to whom must be made 10- does not run against the State in case of nuisance 1 runs against representative of deceased partner, when part payment by one partner on debt barred by, binds copartners, ...----- fcOO when 294 title to chattels by operation of application of, to acquisition of incorporeal hereditam y ^ analogy ' 04 3og title gained by running of, perfect ; disability to sue, effect upon running of under New York Code ' 4 ' 4 as defense to surety ^ in equity 578 INDEX. STATUTE OF LIMITATIONS Continued : Page. as between trustee and cestui que trust 470 under New York Code 617-522 STATUTE OF USES '. 308, 309 STOPPAGE IN TRANSITU. (See CABBIEBS; SALES.) SUBPCENA DUCES TECUM 490 SUBROGATION 209, 408, 409 (See SURETYSHIP.) SURETYSHIP, contribution 408, 410, 411 cosuretyship 408-410 discharge of surety 413-427 alteration of contract 418-421 change in circumstances affecting risk 418-421 creditor's loss of security 416-418 fraud, misrepresentation, concealment 421-425 giving of time to principal 415, 416 notice of revocation or death of surety 425-427 use of principal's defenses 413-415 distinguished from assignment of chose in action 401 contract for benefit of another 401 indemnity 400 novation 400 exoneration 412 indemnity 408, 409 nature and origin of relation 400, 401 no notice of default, when a defense 403, 404 notice of acceptance of continuing guaranty required 402 set-off, when available to surety 412 Statute of Frauds ' 404-408 del credere factors 407, 408 " new and original consideration " 406, 407 when contract voidable for infancy 405, 406 when contract void for coverture 406, 413 whether memorandum must state consideration 405 subrogation 408, 409 suretyship proper and guaranty distinguished, 401, 404, 405, 407, 408 SURRENDER. (See REAL PBOPEBTY.) SURVIVAL OF ACTIONS 326, 327 T. TAXATION. (See CONSTITUTIONAL LAW.) TENDER, what is a sufficient ! 116 under New York Code 490 TORTS. (See CRIMES; DAMAGES; DOMESTIC RELATIONS; REAL.... PROPERTY. ) INDEX. 579 TORTS Continued: In general, Pajce of agent, liability of principal for 10-12 liability of private corporation for 130 liability of municipal corporations for 148-150 of partner, liability of copartners for 269 waiver of, and election to sue on common counts (see QUASI- CONTBACTS. ) defined 428 classified 428 distinguished from contracts 428 from crimes 429 contribution between joint tort-feasors, allowed, when 429 wrongful motive in, when requisite 429 special damage in, when requisite 429 necessity an excuse for, when ' 443, 447 duty of insuring safety f 444 sic utere tuo, etc _. . 444 mistake, effect of 431, 440, 445 Affecting the person, assault, defined , 430 battery, defined 430 consent, as a defense 431 in seduction 431 under mistake of law 431 accident, defined 431 no liability for 431 duress, defined . . 432 self-defense, necessity of belief of danger 432 retreating, when necessary 432 excessive force in, whether action lies 433 for protection, not revenge 445 defense, of land, may use what force in of liberty of person or property, may take life, when 433 of house 4 recaption, of personalty of realty * j off forcible entry vendor's liability to third person for negligence in manu- facture of goods sold 4 occupier of land, duty of, toward travellers on highway . toward trespassers -to-n-ard licensees ' 4f ^ toward invited persons 4 as to dangerous uses of land as to fire and explosives on his land 445 580 INDEX. TORTS Continued : Affecting the person Continued: Page. injuries by animals, owners liability for 438, 442, 443, 446 defamation, publication 438 special damage 439 malice 439 " privileged communications " 439, 440 " fair comment " 440 libel (see defamation, supra), defined 438 distinguished from slander 438 slander (see defamation, supra), defined 438 distinguished from libel 438 words actionable per se 439 malicious prosecution 441 malice in 441 Affecting personal liberty, imprisonment 441 arrest with warrant 441 for felony 442 for misdemeanor 442 Affecting realty, trespass 442 by animals 442, 443, 446 excused by necessity 443 dangerous use of realty, liability for 444 fire or explosives, liability for use of, on real estate 445 Affecting personalty, trespass 445 by mistake 445 in defense of one's own property 445, 446 conversion, defined 446 effect of returning goods 446 by necessity 446 Trespass ab initio, entry must have been by authority of laic 447 affecting the person 447 affecting realty 447 does not extend to crimes 447 non-feasance not sufficient for 447 affecting personalty 295, 448 Defense and justification, that plaintiff was a wrongdoer 448 justification, when acting in a judicial capacity 443 IXDEX. 581 TORTS Continued : Defense and justification Continued: when officer is acting under process when officer acts under unconstitutional law 450 Proximate cause, fact coincident in time not necessarily part of 450 definitions of 459, 431 discussed 451 "Negligence, defined 451 whether there are degrees of 452 Contributory negligence, must be proximate cause of injury 452 of joint tort-feasor, no defense 452 not a defense when wrong was intentional 452 Deceit, defined 453 whether untrue statement, honestly believed, is 453 liability to party not intended to be influenced by 454 whether reliance must be entire 454 statement as to value, when basis of action for 454 TRESPASS. (See PLEADING AT COMMON LAW ; TOBTS.) on land * 442 by animals 442, 446 exception when from highway 443 excused by necessity 443 to personalty 445 in defense of one's own property f 445, 446 ; by mistake 445 06 initio 448 limitation of 447 affecting the person 44" affecting realty 447 does not extend to crimes 447 non-feasance not sufficient for 447 affecting personalty 295, 448 TRESPASS AB IXITIO. (See TRESPASS.) TROVER, ACTIOX OF. (See PLEADING AT COMMON LAW; TORTS.) TRUSTS. (See EQUITY; TRUSTEE.) In general, defined subject of a trust, w^at, may be _ 4 distinguished from a debt, how ' whether bank forwarding note for collection is a trustee . deposit in bank is not a trust of chose in action, distinguished from assignment distinguished from.executorship 4 a 582 INDEX. TRUSTS Continued: Classification, Page. express or direct, defined 456 how created 456, 457 implied, denned 457 resulting, denned 457 constructive 457, 460 charitable, denned 462 " spendthrift," defined 340, 466 Creation of trust, by declaration, without transfer of legal title 459 uncompleted giftdoes not create trust 459 Iby transfer, with declaration of trust for a third person 460 illustrations 460 effect of Statute of Frauds on 460, 461 of personalty 461 of mortgage 461 of realty by testator, may be verbal 461 The trustee. (See TBUSTEE.) who may be ' . 461 infant, may be removed, when 462 may not resign at convenience . . 462 death of , v 465 wife of, has no dower rights 466 bankruptcy of 31, 466 alone recognized as owner of legal title. , . / 467 care required of 467 may not bid at auction of trust estate 46S remedies against 468 The cestui que trust, (see CESTUI QUE TRUST), who may be 462 want of, invalidates trust, when 462 in charitable trusts 462 death of 465, 466 dower rights of wife of 466 bankruptcy of 466 remedies of, against trustee 468 Transfer of the trust property, by the trustee 463 releases from the trust, when 463, 464 illustrations 463. 464 to a purchaser for value and without notice 463, 464 " for valuable -consideration," defined 464 " without notice," defined 464 by the cestui 465 whether transferee of cestui must notify the trustee in order to perfect his title 465 to the trustee after an assignment to a third person, effect of . . 465 INDEX. 583 TRUSTS Continued : Administration of trust, Pa r trustee aione recognized as owner of legal title 407 illustrations 467 care required of trustee 467 investment of trust-re* 467 trustee may not bid at auction of trust estate 468 remedies, of cestui 468 against bankrupt trustee, not barred by discharge, when. 37 against a trustee out of jurisdiction 469 against third persons 469 may elect to take proceeds of wrongful sale 469 Statute of Limitations, how far applicable to 470 TRUSTEE. (See TRUSTS; EQUITY.) delegation of authority by 1 employment by, of firm in which he is a partner 269 defined 456 whether bank forwarding note for collection is 458 assignor is not a, for assignee 458 executor, distinguished from 459 vwto may be 461 infant, may be removed, when 462 may not resign at convenience 462 transfer of trust-res by, releases property from the trust when 463, 464 illustrations of 463, 464 to a purchaser " for value and without notice " 463, 464 death of 48S wife of, has no dower rights 46f bankruptcy of 81, 4i alone recognized as owner of legal title 467 4 o-r illustrations * 4ft7 care required of investment of trust-res by may not bid at auction of trust estate 4 remedies against, in general when out of the jurisdiction liable for proceeds of wrongful sale. . Statute of Limitations, how far applicable to 470 u. UNDISCLOSED PRINCIPAL. on what ground held on agent's contract * when liable to the third party *' set-off a.srainst, by third party UNDUE INFLUENCE . . . usury, when a defense to surety 584 IXDEX. V. VICE-PRINCIPAL. (-See FELLOW-SEBVANTS. ) w. WAIVER. (See INSUBANCE; QUASI-CONTBACTS ; SALES.) "WAIVER OF TORT." (See Qu ASI- CON TRACTS ; TOBTS.) WAREHOUSE RECEIPT, Page. effect of, indorsement of 399 WARRANTY. (See CONTBACTS; INSUBANCE; SALES.) - . of validity of bill or note, by indorsement 45 in law of contract, as an express condition 109 test of what is a 109, 110 breach -of, effect 110 Sn law of insurance, denned 237 effect of breach of 237 covenant of, in deed, defined 312 broken when 312 who can sue for breach of 312 in law of sales, meaning of 374, 375 WATER AND WATERCOURSES, deed of land bounded on stream, conveys to center line . 309 water in a spring or well is part of the land 318 surface water, is property of the landowner, when 318 from adjoining land, can' be kept off, when 319 flowing stream, easement of riparian owners in 318, 319 WAYS OF NECESSITY 311 WILLS AND ADMINISTRATION. (See NEW YOBK CODE; REAL PBOPEBTT. ) In general, history of wills, outlined 319 right of disposal of property by will, dependent upon statute. 319 real estate, will disposing of, must conform to lex loci rei sitae. 320 interpretation of wills depends upon domicile of testator.. . 320 probate of will, denned 320 effect of 320 nuncupative will, defined. 321 married woman can make will, when 321 " of full age," denned. 321 publication, defined 321 " will speaks at death," explained 321 mental capacity to make a will, what is sufficient 321 " undue influence." defined 322 one in confidential relation to testator, bequest to, effect. . . . 322 incorporation of other papers, by reference thereto in will .... 322 Execution of trills, of real estate, must conform to lex loci rei sitae 320 INDEX. 585 \ WILLS AXD ADMINISTRATION Continued: Execution of iciiis Continued: p a _ e if witnesses are competent at attestation, later incompetency immaterial 323 attestation by one who takes legacy, effect of 323 signing, " in the presence " of the testator, defined 324 what is a sufficient 324 acknowledgment of signature, by testator, equivalent to sign- ing 324 by witnesses, worthless 324 Revocation of wills, general methods, outlined 324 by burning or tearing, essentials of 324 by cancellation, defined 325 by marriage, or other change in circumstances 325 Probate and administration, probate of will, means what 320 effect of 320 executor "de son tort," defined 325 liability of '325 administrator de Z>cmts non, defined 321 forged will, payment of debt to executor under, protected. . : . 326 what rights of action survive to executor 326 what actions against deceased survive 327 purchaser of personalty from executor acquires good title 327 lapsed and void legacies and devises, defined 327 disposal of 327 " abatement " of legacies, defined : 328 " ademption " of legacies, defined, and distinguished from " ad- vancement " and " satisfaction " 328 executor, distinguished from trustee 459 WITNESSES. (See EVIDENCE; WILLS.) [Whole number of pages, C37.]