THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA IRVINE t GIFT OF J. A, C. Grant THE AMERICAN STATE REPORTS, CONTAINING THB CASES OF GENERAL VALUE AND AUTHORITY, SUBSEQUENT TO THOSE CONTAINED IN THE "AMERICAN DECISIONS" AND THE "AMERICAN REPORTS," DECIDED IN THB COURTS OF LAST RESORT OF THE SEVERAL STATES. UJMTTBD, REPORTED, AND ANNOTATED BY A. C. FREEMAN, AMD THB A3SOCIATK EDITORS OF THE "AMERICAN DECISIONS." VOL. I. SAN FRANCISCO: BANCROFT-WHITNEY COMPANY, LAW PUBLIBHKM AND LAW BOOKSBLLZBB. 1888. KTF V. Entered according to Act of Congress in the year 1888, BY BANCROFT-WHITNEY COMPANY, In the Office of the Librarian of Congress, at Washington. ANNOUNCEMENT. THIS is the initial volume of a series of reports which com- mence at the period where the American Reports were discon- tinued, and are designed to extend into the future without limit. The scope of these reports, and the plan upon which they will be edited and published, will be substantially the Bame as those of the American Decisions. The number of volumes will be limited to six each year. This number will admit of the selection and insertion of a higher percentage of the original decisions than was possible in the publication of either the American Reports or the American Decisions, while it will not require the publication of anything which is not of permanent and general importance. The plan which it is proposed to pursue in this series of re- ports may be considered with respect, first, to the reporting, and second, to the matter to be reported. In the reporting, an effort will be made, 1. To educe from each opinion all the legal principles therein asserted as neces- sary grounds of the decision; and to formulate those principles into syllabi as clear and terse as possible; 2. To state those facts which, though not disclosed by the court, are necessary to enable the reader the better to comprehend the opinion, and to determine whether any portion thereof was unnecessary to the decision of the cause; 3. To embody in cross-references, at the close of the opinion, citations of parallel and analogous cases reported in the present series or in the American Re- ports or the American Decisions; 4. To write full and accurate notes to such cases as involve topics which, either from their novelty or importance, are thought worthy of especial consid- eration. The matter to be reported will consist of opinions of the courts of last resort in the several states, selected because of their general value to the legal profession in every part of the United States. Decisions which involve local or statutory 6 ANNOUNCEMENT. questions will not be reported, except when those questions are blended with others too important to be excluded. In that event, no point of the opinion will be omitted. It is true, this may occasionally result in the publication of matter of local value only; but this evil will be more than compen- sated by the obvious advantages of a complete report. Per- sons seeing a case cited as reported in the original as well as in this series will naturally and rightfully expect that either citation may be safely cited in support of the same proposi- tions. Furthermore, an opinion from which something is known to be omitted is always viewed with a suspicion which seriously impairs its force as an authority. Doubts will surely arise whether the part omitted may not limit or enlarge that which is inserted, or may not show that the portion published is a mere extrajudicial opinion, not entitled to the rank and credit of a matter necessarily decided. While, as has been indicated, decisions involving statutory questions will rarely be reported, yet when reported, if the statute is not sufficiently disclosed in the opinion of the court, the clauses under consideration will be set forth, either sub- stantially or in full, in the statement of facts. By this means, the decision can be clearly understood by persons not having access to the original statute, and can be properly applied and conceded the force of authority in every state having similar statutes. A. 0. P. SAH FRANCISCO, July 27, 1888. AMERICAN STATE REPORTS. VOL. I. SCHEDULE showing the original volumes of reports in which the cases herein selected and re-reported may be found, and the pages of this volume devoted to each state. MM. CALIFORNIA REPORTS Vol. 72. 17- 91 CONNECTICUT REPORTS Vol. 54. 92-149 HOUSTON'S DELAWARE REPORTS. . . Vol. 5. 150-172 FLORIDA REPORTS Vol. 22. 173-230 KANSAS REPORTS Vol. 37. 231-280 MAINE REPORTS Vol. 79. 281-358 MARYLAND REPORTS Vol. 67. 359-421 MASSACHUSETTS REPORTS. .... Vol. 145. 422-486 MICHIGAN REPORTS Vols. 60, 61. 487-623 MINNESOTA REPORTS Vol. 36. 624-700 MISSOURI REPORTS Vol. 92. 701-784 NEW YORK REPORTS. Vol. 107. 785-904 f AMERICAN STATE REPORTS. VOL. I. CASES REPORTED. NAME. SUBJECT. REPORT. PAGE. Adams v. BealL ................ .Infancy .......... 67 Md. 53 ....... 379 Adams v. Be Qua. ............... Judgments ........ 22 Fla. 250. ...... 191 Allen T. Maine Central R. R. Co. . Common carriers. . . 79 Me. 327 ....... 310 Allison v. Thomas ............... Deeds process.. . . 72 Cal. 562 ....... 89 Anderson v. Goff ................ Process ........... 72 Cal. 65 ........ 34 Anderson v. Peterson ............ Public lands. ...... 36 Minn. 547 ..... 698 Ayer v. Western Union TeL Co. . . Telegraphs. ....... 79 Me. 493 ....... 353 Baltimore etc. R. R. Co. T. Boyd. . Trespass ......... 67 Md. 32 ....... 362 Barker ada. People .............. Jury and jurors. . . 60 Mich. 277 ..... 501 Barry v. Terkildsen .......... '.{ "^^ \ 72 CaL 254. ...... 55 Bassett v. Conn. River R. R. Co. Railroads. ........ 145 Mass. 129 ..... 443 Bates v. Wiggin. ................ Mortgages ........ 37 Kan. 44 ....... 234 Bath v. Metcalf .................. False imprisonment.l4;5 Mass. 274 ..... 455 Bennett v. Kroth ................ Costs witnesses.. .. 37 Kan. 235 ...... 248 Berlack v. Halle ................. Mortgages ........ 22 Fla. 236 ...... 185 Bliss v. Inhab. of South Hadley. . .Negligence. ....... 145 Mass. 91 ...... 441 Bolinger v. St. Paul etc. R. R. Co. Railroads ........ 36 Minn. 418 ..... 680 Briggs v. Lewiston etc. R. R. Co..Munic. corporat'ns. 79 Me. 363 ...... 316 Brooks v. Brooks ................ Mar'ge and div'rce.HS Mass. 574 ..... 485 Banker v. Barron ............... Mortgages-paym't. 79 Me. 62 ....... 282 Burrows v. Mickler .............. Pleading and prac. 22 Fla. 572 ....... 217 Bushby v. New York etc. R. R. Co.Maxter and servant. 107 N. Y. 374 ..... 844 Butler v. Chambers .............. Constitutional law. . 36 Minn. 69 ..... 638 Callanan v. Oilman .............. Highways ........ 107 N. Y. 360 ..... 831 Carpenter v. Rodgers ............. Contracts ......... 61 Mich. 384 ..... 595 Cantens T. Hanselman. ........ \ HusbanJ and wife ) Ql Mi fa 426 ..... QQQ I phystctans. \ Canco National Bank T. Shaw ..... Neg. instruments. . . 79 Me. 376 ...... 319 Clapp v. Minneapolis etc. R. R. Co. Master and tenant. 36 Minn. 6 ...... 629 I 10 . CASES REPORTED. NAIU. SUBJECT. EXPORT. PAGE. Clark v. Mosher ................ Interpleader. ...... 107 N. Y. 118. . . . . 798 67 Md. 461 ...... 409 Coburnv.Goodall ......... ~-.*fL *<**** ...... 75 Colman v. Goodnow .............. Mechanics' lien* ... 36 Minn. 9 ...... 632 Combav. Combs ................ Wills ............ 67 Md. 11 ....... 359 Connor v. Stanley .............. Contracts insanity. 72 Cal. 556 ...... 84 Cooch's Executor v. Cooch'a Ad- J Estates ofdeced'ts ) - rr onat tun jgi ministrator. { wills. 1 Coverv. Stem .................. Debtor and creditor. 67 Md. 449 ...... 406 Co wen v. Sunderland ............ Landlord and ten't. 145 Mass. 363 ..... 469 Craver v. Christian .............. Master and servant. 36 Minn. 413 . . . . 675 Crawford v. Spencer ........... j Gamir^contract* J m MQ 4g8 ....... ?4g Credit Company, Limited, v. j Corporations ) g, Conn. 357 123 Howe Machine Company. \ Neg. instruments. \ Cunningham v. Jones ............ Attorney and client. 37 Kan. 477 ..... 257 Dalay v. Savage ................. Highways ........ 145 Mass. 38 ...... 429 Davis v. Kobe. .................. Factors ........... 36 Minn. 214 ..... 663 Deringer's Administrator v. Der-j Corporations > 6 Honat 416 150 inger's Administrator. ( ex'rs and adm'rs. ) Detroit Base-ball Clnb v. Deppert. Injunctions ....... 61 Mich. 63 ...... 566 Defoe v. Harshaw ............... Munis, corporat'ns. 60 Mich. 200 .... 498 Donaldson v. Wilson. .......... \ Landlordandten- ) QQ m h> gg ...... 437 ( ant negligence. J Dora v. Dougherty ............ j ^^f \ < ...... 44 ....... 368 67 Md. 383 ...... 396 Eutaw Place Baptist Church of ) m-n, c-i MI XQQ Atn Baltimore City%. Shively. \ Wttt ............ 67 Mi 493 ...... 412 Evans v. Robberson .............. Executions ........ 92 Mo. 192 ...... 701 Fairbanks v. Snow .............. Duress ........... 145 Mass. 153 ..... 446 Firemen's Insurance Company j Partnership: ) /.^ -M-J j ft o nno of Baltimore v. Floss. \ insurance. } 6 ' Md. 403 ...... 3 Fisk v. Central Pacific R. R. Co. . . Master and servant. 72 Cal. 38 ........ 22 Freehling v. Bresnahan .......... Exemptions ........ 61 Mich. 540 ..... 617 Freeman v. Foss ................. Statute of frauds. .145 Mass. 361 ..... 467 Gadway ads. People ............. Statutes .......... 61 Mich. 285 ..... 578 Gay v. Oilman .................. WiUi. ...... ..... 92 Mo. 250 ...... 712 Gilley v. Gilley ................. Parentand child. . . 79 Me. 292 ....... 307 Giroux v. Stedman .............. Saks ............. 145 Mass. 439 ..... 472 Godfrey v. White ............... Partition ......... 60 Mich. 443 ..... 537 Granite National Bank v. Fitch. . .Neg. instruments. . . 145 Mass. 567 ..... 484 Grieb v. Cole .................... Saks ............ 60 Mich. 397 ..... 633 GrisseU v. Housatonic R. R. Co. . . Railroads ......... 54 Conn, 447 ..... 138 Gunnv. Peakes .............. Judqments. ....... 36 Minn. 177 ..... 661 CASES REPORTED. 11 NAME. SUBJECT. REPORT. PAGE. Halev. Spaulcling ............... Release, .......... 145 Mass. 482..... 475 Hall v. Kimmer ................. Pensions .......... 61 Mich. 269. ---- 675 Harshaw ads. People ............ Munic. corporations. 60 Mich. 200. .... 498 Harris v. Bank of Jacksonville ---- Alter nofinstmn't*. 22 Fla. 501 ...... 201 Hayes v. Nourse ................ Pleading andpj-ac.lQl N. Y. 577 ..... 891 Hazeltine v. Belfast etc. R. R. Co. Corporations ...... 79 Me. 411 ...... 330 Hodge v. Sloan ................. Covenants ......... 107 N. Y. 244. ---- 816 Holman v. Continental L. Ins. Co.Insurance ........ 54 Conn. 195 ..... 97 House v. House ................. Attorney and client. 61 Mich. 69 ...... 570 Hudson v. Coe .................. Co-tenancy ....... 79 Me. 83 ....... 288 Jackson and Wife v. Holbrook. . . .Judgments ....... 36 Minn. 494 .... 683 Johnson v. Williams. ............ Deeds ........... 37 Kan. 179 ..... 243 Johnston v. Allen. .............. Neg. instruments. . . 22 Fla. 224 ...... 180 Kaes v. Gross ................... Homesteads dower. 92 Mo. 647 ....... 767 Kendrick v. Towle .............. Negligence ........ 60 Mich. 363 ..... 526 King v. Warfield ................ Contracts ....... ;. 67 Md. 246 ...... 384 Kiplinger v. Green .............. Landlord and ten't. 61 Mich. 340 ..... 584 Knapp v. Bailey ................ Deeds notice. ..... 79 Me. 195 ...... 295 Kraker ads. People .............. Criminal law ...... 72 Cal. 452 ...... 65 Kurtzv. State .................. Extradition ....... 22 Fla. 36 ....... 173 Lancaster y. Connecticut Mutual j Master and ser- ) 99 \T O AQQ 739 Life Insurance Company. ( vant negligence. ) Laubheim v. De K. N. S. Co ...... Shipping ......... 107 N. Y. 228 ..... 815 Lewis v. Wetherell .............. Homesteads ....... 36 Minn. 386 .... 674 Lindsley v. Chicago etc. R. R. Co. Common carriers . . 36 Minn. 539 .... 692 Logan v. Logan. ................. Fraud, conveyances. 22 Fla. 561 ...... 212 Lowell v. Strahan ............... Landlord and fen'<.145 Mass. 1 ....... 422 ^jTr^' City* Nati0nal BMlk [** and fcwiftV-lW N. Y. 179 ..... 803 Manchester v. Braedner ......... Stat. of I imitations. 107 N. Y. 346. .... 829 Mathewa v. Phelps .............. Guaranty ........ 61 Mich. 327 ..... 581 McCoy y. Brennan .............. Exemptions ....... 61 Mich. 362 ..... 589 McFadden v. Missouri etc. E'y Co. Common carriers. . . 92 Mo. 343 ...... 721 McFarland y. Sikes .............. Contracts. ........ 54 Conn. 250 ..... Ill McGeo y. Missouri Pacific R'y Co. Common carriers . . 92 Mo. 208 ...... 706 McPhee y. Litchfield ............ Mechanics' liens ---- 145 Mass. 565 ..... 482 McPherson y. Rollins. ......... j *** f Sj^ (l07 N. Y. 316 ..... 826 Michigan Land and Iron Com- ) Trt> ^ ..... 60 Mich> 143. .... 491 pany y. Deer Lake Company. ) Mitchell y. Aten ................ Agency judgm'ts.. 37 Kan. 33. ...... 231 Miller y. Dunn. ................. Constitutional law. . 72 Cal. 462. ...... 67 Millerv. Shay .................. Evidence ....... ..145 Mass. 1C2 ..... 449 ........ 145Ma~281 ..... 458 New York Rubber Co. y. Rothery.tojcpel. ......... 107 N. Y. 310 ..... 822 12 CASES REPORTED. NAME. SPBJICT. BEPOBT. PAGB. Oak v. Dustin Duress 79 Me. 23 281 Oakland Paving Co. v. ^eing of itself an assumption that they are lawful; and the servant who re- fuses to obey would take upon himself the burden of showing a lawful rea- son for the refusal. This of itself is sufficient for excusing the servant who Feb. 1887.] FISK v. CENTRAL PACIFIC R. R. Co. 31 declines the responsibility in any case in which doubts can possibly exist; he should assume that the order is given in good faith, and in the belief that it is rightful; and if, in his own judgment, it is unwarranted, it is not for the master to insist that the servant was in the wrong in not refusing obedience. Respect for the master, as well as a consideration for his own interest, may very properly induce him to waive his ow,n judgment for that of his superior, and instead of engaging in disputes and being perhaps ejected from his em- ployment, to leave questions of doubt for future settlement. Now, although we think, on the facts, as the jury has found them, there was no authority to send Williams to handle brakes, yet the point was not so clear but that serious question was made of it on the trial; and it would be grossly unjust to compel the servant at his peril to decide correctly on the validity of an order presumptively lawful, when the consequences of even a correct decision might be apparent insubordination, and perhaps difficulty and litigation. It is perfectly just, under such circumstances, to leave upon the master the re- sponsibility he assumed in giving the unwarranted order, and to hold that the servant is not blamable in yielding obedience to his superior Nor do we think it follows that, because Smith at the time was exceeding his au- thority, the company is not responsible for his action. It is in general no excuse to the employer that the injury which has occurred was caused by disobedience of his orders, whether they be express orders or implied orders. He assumes the risks of such disobedience when he puts the servant into his business, and the reasons for holding him responsible for the servant's con- duct are the same, whether injury results from a failure to observe the mas- ter's directions, or from a neglect of the ordinary precautions for which specific directions are deemed necessary. It will be conceded that, for a positive wrong beyond the scope of the master's business, intentionally or recklessly done, the master cannot be held responsible; this being very properly re- garded as the personal trespass or tort of the servant himself. But when the wrong arises merely from an exercise of authority committed in further- ing the master's interest, and the master receives the benefit of the act, if any, it is neither reasonable nor just that the liability should depend upon any question of the exact limits of the servant's authority. The master fixes these; and it is his duty to keep his servant, in what is done by him, within the fixed limits. An act in excess would still have the apparent sanction of his authority; the occasion for it would be furnished by the employment, and the injured party could not always be expected to know or be able to discover whether it was or was not without express sanction. In this case Smith had charge of the train and of the men employed with it. In what he did he was not purposely committing any wrong outside the employment; but his wrong was committed while acting in the very capacity in which he was employed, and had for its manifest purpose, not to injure Williams, but to advance the interests of the railway company. As between the company and any other than a fellow-servant, there could be no question that his act should be deemed the act of the company. But we also think that, where the superior servant, by means of an authority which he exercises by delegation of the master, wrongfully exposes the inferior servant to risks and injury, the mas- ter must respond. It is only where the risks properly pertain to the business and are incident to it that the master is excused from responsibility; and a risk of this nature, not being one of the kind, the general rule applies, and he must answer for the misconduct of his agent. " WHO ARE FELLOW-SERVANTS. A yard-laborer and a locomotive-engineer: Cliicago and Alton R. R. Co. v. J/;y/iy, 53 111. 330; 5 Am. Rep. 48. A rail- 32 FISK v. CENTRAL PACIFIC R. R. Co. [Gal. way road-master and a laborer on a culvert: Lawlor v. Androscoggm R. R. Co., 62 Me. 463; 16 Am. Rep. 492. A mill-hand and other employees bound to keep fire apparatus in order: Jones v. Granite Mills, 126 Mass. 84; 30 Am. Rep. 661. The master of a lighter and the crew: Johnson v. Boston Tow-boat Co., 135 Mass. 209. Mechanics in a repair shop: Murphy v. Bos- ton and Albany R. R. Co., 88 N. Y. 146; 42 Am. Rep. 240. Road-master and section-hand: Brown v. Winona'and St. Peter R. R. Co., 27 Minn. 162; 38 Am. Rep. 285. A foreman having no power to discharge employees and an employee: Peterson v. Whitebreast Coal and Mining Co., 50 Iowa, 673; 32 Am. Rep. 143; Keystone Bridge Co. v. Newbsrry, 96 Pa. St. 246; 42 Am. Rep. 543. Engineer and brakeman: Nashville etc. v. Wheless, 10 Lea, 741; 43 Am. Rep. 317. Brakeman and car-inspector: Smith v. Flint etc. R'y Co., 46 Mich. 258; 41 Am. Rep. 161. Conductor and telegraph operator and fire- man: Slater v. Jewett, 85 N. Y. 61; 39 Am. Rep. 67. Train-dispatcher and brakeman: Robertson v. Terre Haute etc. R. R. Co., 78 Ind. 77; 41 Am. Rep. 552. Master and mate of a vessel: MattJiews v. Case, 61 Wis. 491; 50 Am. Rep. 51. A baggage- master on a train and a switch -tender: Roberts v. Chi- cago etc. R'y Co., 33 Minn. 218. Conductor and employee on a construction train and another employee: Cassidy v. Maine Cent. R. R. Co., 76 Me. 488. Brakeman and conductor acting as engineer: Rodman v. Michigan Cent. R. R. Co., 55 Mich. 57. Track-repairers and hand -car crew: O'Brien v. Boston and Albany R. R. Co., 13 Mass. 387; 52 Am. Rep. 279. Engineer and coupler of a freight train: Boatwright v. Railroad Co., 25 S. C. 128. Watchman and repairer under car on track: Luebke v. Chicago, M.,. DOUGHERTY [CaL thereby voluntarily assumes the responsibilty of such nui- sance, and becomes liable for the damages sustained in con- sequence thereof, subsequent to his purchase. The instructions of the court below were in consonance with this theory, and the judgment and order appealed from should be affirmed BELCHER, C. C., and FOOTE, C., concurred. The COURT. For the reasons given iu the foregoing opinion, the judgment and order are affirmed. Hearing in bank denied NUISANCE. Liability of lessor of premises is considered in note to City of Lowell v. Spaulding, 50 Am. Dec. 776-783; see also Kalis v. Shattuck, 58 Am, Rep. 568. PURCHASER OF PROPERTY, WHEN ANSWERABLE FOR CONTINUANCE OF PRE- EXISTING NUISANCE: Crommelin v. Cox, 68 Am. Dec. 121; PilUburyv. Moore, 69 Id. 91; Johnson v. Lewis, 33 Id. 405, and note; Pierson v. Glean, 25 Id. 497; see also note to Plumer v. Harper, 14 Id. 338-341. LIABILITY OF ERECTOR OF NUISANCE, CONTINUANCE OF, AFTER HE CON- VEYS PROPERTY ON WHICH IT is LOCATED: Plumer v. Harper, 14 Am. Dec. 333, and note. DORE v. DOUGHERTY. [72 CALIFORNIA, 232.] JUDGMENT BASED ON ALIAS SUMMONS issued without any return of the original, and which imperfectly states the nature of the cause of action and fails to notify the defendant to appear and answer at the office of the justice, is not void. JUDGMENT is NOT SUBJECT TO LEVY AND SALE UNDER EXECUTION. JUDGMENT DEBTOR MAY BE GARNISHED by delivering to him a copy of the writ of execution, with a notice in writing stating that all hia right, title, and interest in such judgment, and all moneys, goods, credits, and effects due or owing by him to the judgment creditor are levied upon. APPEAL WILL NOT BE DISMISSED because statement on motion for a new trial was not served on certain parties to the action not interested in the appeal. ACTION to determine who is entitled to receive certain moneys, being the amount of a judgment and costs. One of the defendants, Miller, had attempted to obtain title to the judgment under proceedings taken by him under a judgment in his favor against George Dougherty, the judgment creditor. Miller's judgment was objected to because rendered by de- fault in a justice's court, and based upon the service of an April, 1887.] DORE v. DOUGHERTY. 49 alias summons, which was defective in the matters pointed out in the first subdivision of the syllabus. The other facts are stated in the opinion. /. M. and Charles E. Nougues^ for the appellant. /. C. Bates, for the respondent. By Court, TEMPLE, J. August 3, 1880, George Dougherty, one of the defendants, recovered judgment against the present plaintiff for $2,186, and costs. On the same day Dougherty assigned the judgment to his son, John Dougherty. Septem- ber 3d, Dore appealed to the supreme court from the judg- ment. The judgment was affirmed here February 16, 1883: Dougherty v. Dore, 63 Cal. 170. September 4, 1880, while the appeal was pending, defendant Miller caused a levy to be made on the judgment by virtue of an execution from the justice's court of San Francisco, upon a judgment against George Dougherty in favor of Miller. The attempted levy was by the sheriff, who delivered to and left with Maurice Dore a copy of the writ, with a notice in writing that such property, to wit, " all the right, title, and interest in and to a certain judgment obtained in the superior court, department 5, of the city and county of San Francisco, in which George Dougherty is plaintiff, and Maurice Dore defendant, judgment having been rendered on the ninth day of August, 1880, against said Maurice Dore for the sum of $2,186, and costs "; also no- tifying Dore that he levied upon all moneys, goods, credits, effects, debts due or owing, or in his possession, or under his control; and requesting him not to pay or transfer the same to any one save said officer. September 27, 1880, the sheriff pro- ceeded to sell all the right, title, and interest of George Dough- erty in the judgment to the defendant Miller for the sum of twenty dollars, which was credited upon the execution and judgment in favor of Miller against said Dougherty. This ac- tion was brought by Dore under section 386, Code of Civil Pro- cedure, to have the court determine who was entitled to receive the money, the amount of the judgment and costs, $2,850, being deposited in court. The court awarded the money to John Dougherty, the assignee of George Dougherty, and Miller ap- peals from the judgment, or a portion of it. The superior court refused to allow Miller to introduce proof for the purpose of showing that the assignment to John Dough- erty was fraudulent, on the ground that Miller had acquired AH. ST. REF., VOL. L 4 50 DORE v. DOUGHERTY. [Cal. no title to the judgment against Dore, and had no such stand- ing as would enable him to attack the assignment. This position is sought to be maintained on the ground, first, the judgment rendered in justice's court is void; but in this we do not agree with respondent's counsel. The summons was sufficient, at least as against a collateral attack, under the rule laid down in Keybers v. McComber, 67 Cal. 395. Whether the alias summons was regularly issued or not is not a jurisdic- tional question. In the next place, it is claimed that the judgment was not subject to levy and sale under execution. We think this point well taken. It was expressly so held in McBride v. Fallon, 65 Cal. 301. Much may be said on both sides of this question, and it has been differently decided in different states. As it has been decided in the above case, we see no reason for re- opening the discussion. It is claimed that the case of Mc- Bride v. Fallon, supra, only holds that the sale could not be made as it was attempted in that case, and that the mode of levy there was different from the mode pursued here. But that ruling is expressly placed upon the ground that the judg- ment is but the evidence of a debt, and the statute has made no provision for attaching or levying upon evidences of debt; but that it is the debt itself, and not the evidence of it, which may be levied upon by the writ of attachment, or on execu- tion in like manner as upon writs of attachment. And to confirm this view, the court alludes to the case of Davis v. Mitchell, 34 Cal. 81, where it was held that a promissory note was the subject of levy and sale, when the sheriff could get possession of it, and could deliver it to the purchaser, and say they could not assent to the doctrine of that case. Of course it is not denied that a judgment is property, or that it can be the subject of assignment. The ruling is based entirely upon the statute. And it seems to us that it necessarily follows that the debt was by the proceeding duly levied upon. Ser- vice of the writ and notice constituted what is usually called the process of garnishment. It is claimed that the garnishment is not sufficiently pleaded by defendant Miller. It is true, Miller claims to have bought the judgment; but in showing his title to the judgment he adopts by express reference the allegations in the complaint which show the garnishment, and adds the other facts which show the debt itself was duly levied upon. This put Miller in the attitude of a creditor, and gave him the right to attack April, 1887.] SULLIVAN v. ROYER. 51 the assignment for fraud, and the ruling denying him tfcat right was error. The other defendants were not interested in this appeal, and the motion to dismiss, on the ground that it does not appear that the statement was served on all the ad- verse parties, must be denied. Judgment reversed, so far as the same affects defendant Miller, and a new trial ordered as to the claim of said de- fendant. PATERSON and MCKINSTRY, JJ M concurred. Hearing in bank denied. DEFECTS IN SUMMONS, OR IN ITS SERVICE, must generally be urged by motion or proceeding for the vacation of the writ, or of its service. Other- wise, the irregularity is waived, and can aid the defendant in any attempt to collaterally avoid a judgment based upon such writ: Freeman on Judgments, sec. 126; Kfybers v. McComber, 67 Cal. 395; Ballinger v. Tarbell, 85 Am. Dec. 527, and cases cited in note. JUDGMENT, WHETHER SUBJECT TO LEVT AND SALE UNDER EXECUTION: Oaborn v. Cloud, 92 Am. Dec. 413, and note 416. JUDGMENT ENTERED BEFORE EXPIRATION OF TIME ALLOWED DEFENDANT to answer was held void in Johnson v. Baker, 87 Am. Dec. 293; LeJj'ord v. Weber, 7 111. App. 91. SULLIVAN v. EOYEB. [72 CALIFORNIA, 248.] JURY TRIAL Counsel have no right to read law books, nor to argue ques- tions of law to the jury. ABATEMENT OF NUISANCE is accomplished in equity by an injunction, adapted to the facts of the case. PRAYER OF COMPLAINT for the abatement of a nuisance warrants a decree for an injunction against the continuance of such nuisance. VERDICT OF JURY IN SUIT IN EQUITY is advisory merely. NUISANCE. The issuing of soot from a smoke-stack may be enjoined, where it constitutes a disagreeable nuisance in a populous city. LICENSE TO MAINTAIN NUISANCE, if granted by a board of supervisors, will not be permitted to substantially impair the rights of property holders. SUIT in equity to abate a nuisance, consisting of soot issuing from a smoke-stack on the premises of the defendant in the city of San Francisco. Decree for the plaintiff. M. A. Wheaton, for the appellant. Preston and Allen, and J. M. Allen, for the respondent. By Court, FOOTE, C. This is an action in equity, instituted for the purpose of enjoining and abating certain nuisances, 62 SULLIVAN v. ROYEB. [CaL and for the recovery of damages resulting therefrom. The cause was tried before a jury, who heard all the evidence given therein, a verdict was by them rendered for one hundred dol- lars damages against the defendant, " and that he be ordered by the court to abate the nuisances complained of by the plain- tiff." Thereupon the court made and filed written findings of fact upon all the material issues raised by the pleadings, and rendered its judgment, enjoining the defendant from con- tinuing the nuisances complained of, ordering that the same be abated, and that the plaintiff recover the sum of one hun- dred dollars damages, and costs. A new trial was moved for by the defendant, and denied, and from the judgment and order made therein this appeal is prosecuted. Counsel for the defendant contends most earnestly, upon several grounds, that the judgment and order should be re- versed, but none of them appear to us to be tenable. There was no error in the refusal of the court to allow the defendant's counsel to read law books, or to make an argu- ment on the law of the case, or to state what he claimed to be law, to the jury: People v. Anderson, 44 Gal. 70; Proffatt on Jury Trials, sec. 253. As we have seen, this was an action in equity: People v. Moore, 29 Cal. 428; Courtwright v. B. R. & A. W. & M. Co., 30 Id. 576, 577. An abatement of a nuisance is accomplished by a court of equity by means of an injunction proper and suitable to the facts of each case: Wood on Nuisances, sees. 777-794. The complaint alleged and the court found that a nuisance existed and was continuous; the answer denied all the mate- rial allegations of the complaint. While it is true that the prayer of the pleading above referred to did not expressly ask for the issuance of an injunction, yet it did ask " that said nuisance be abated." The relief granted was consistent with the case made by the complaint, and embraced within the issues made by the pleadings, and was therefore entirely proper: Code Civ. Proc., sec. 580. There is a substantial conflict in the evidence as to whether the plaintiff was, at the time of the institution of the action, employed by the defendant to remove the " pile of hair and flesh" that constituted a part of the nuisance complained of. The defendant complains that the court instructed the jury that damages could be recovered against him after the com- mencement of the action- It arrears, however, that the plain- April, 1887.] SULLIVAN v. ROYER. 53 tiff waived all damages for anything that had occurred after the filing of the complaint, and the case being one in equity, the verdict of the jury was merely advisory to the court: Sweetser v. Dobbins, 65 Cal. 529. The defendant's counsel makes a very strenuous argument that in effect the verdict, judgment, and findings, as he claims, most improperly pronounced the smoke-stack of the defend- ant to be a nuisance. The language of the decree or judgment upon that subject is as follows: "It is adjudged and decreed that said defend- ant is perpetually enjoined from allowing soot to issue from the smoke-stack on the premises," etc. The findings show that the issuance of this soot from the smoke-stack above mentioned was a nuisance of a most dis- agreeable character to the plaintiff and his family. We are not informed from the record but what this smoke- stack might have been used in such a way, both readily and easily, as that soot would not have issued therefrom. But be that as it may, it is said by this court in the case of Tuebner v. California Street R. R. Co., 66 Cal. 174: "The keeping of a hotel or a restaurant is a lawful and very necessary business, .... yet it could not be held. that a person carrying on such business, or any requiring a large consumption of fuel, could erect his chimney to a height that would discharge the smoke and soot into his neighbor's windows. It is true, as argued by appellant, that persons preferring to live in the city rather than the country must accept many inconveniences, prob- ably all that flow naturally and necessarily from the concen- tration of populations; but that doctrine should not be carried too far. The law looks to a medium course to be pursued by each for the mutual benefit of all." Tested by this rule, we do not see why the plaintiff should not be restrained from so using his smoke-stack as that the soot issuing therefrom shall be prevented from being a disturbance, annoyance, and source of positive injury to the defendant and his property. Nor could the board of supervisors of the city and county of San Francisco grant a license to the defendant which would permit him materially to impair the plaintiff's property rights. They could and did grunt the defendant a license to erect and maintain his steam-engine, but they neither could nor did license him thereby to create a nuisance: Tuebner v. California Street R. R. Co., supra. Upon the whole case, the record of which as well as briefs 64 SULLIVAN v. ROYER. [Cal. of counsel and authorities there cited we have carefully ex- amined, we are of opinion that the judgment and order should be affirmed. SEABLS, C M and BELCHER, C. C M concurred. The COURT. For the reasons given in the foregoing opinion, the judgment and order are affirmed. JURY TRIAL. Where the distinct provinces of tne court and of the jury we recognized, and the former ia held to be the exclusive judge of the law, as the jury are of the facts, it is clearly improper for counsel to argue ques- tions of law to the jury, or to read law books or extracts therefrom in the course of their argument. In the first place, such a course savors of disre- pect to the judge on the bench, as it suggests to the jury that there are other exponents of the law to whom they may look in making their decision, and invites them to accept the law as read by the attorney, rather than aa set forth in the instructions which the court is to give to them before they retire for deliberation. In the next place, whenever the jury is to be influ- enced by something which is stated to them and in their presence, as law applicable to the case, it ought to be in the form of instructions to which the opposing party may, if he so wish, reserve an exception. Otherwise, he ia without redress, if that which is stated as law is, in truth, not the law at all; or if, though being sound law when properly applied, it is entirely inap- plicable to the case under consideration. Besides, the reading of law books in the course of an argument must tend to confuse as well as mislead the jury. It distracts their attention from the facts of the case. The reading of such books may be permitted in the discretion of the court, if pertinent, by way of illustration; but if its apparent object is "to induce the jury to disregard the instructions, or to take the law of the case from the books rather than from the court, " it should be checked by the judge, unless per- haps in those cases where the jurors are judges of the law as well as of the facts: Proffatt on Jury Trials, sec. 253; People v. Anderson, 44 Cal. 70. NUISANCES. Businesses, though lawful in their nature and of great public or private benefit, must be so conducted as not to constitute nuisances. Otherwise, they will be enjoined. This rule was applied to lead smel ting- works, in Appeal of the Pennsylvania Lead Co., 42 Am. Rep. 534; to slaughter- houses: Pruner v. Pendleton, 40 Id. 738; Minke v. Hoffman, 29 Id. 63; to the operation of a steam-engine: Dettman v. Repp, 33 Id. 325; McKeon v. Lee, 10 Id. 659; to rolling-mills emitting smoke and cinders: Wesson v. Washburn I. Co., 90 Am. Dec. 181; to a blacksmith's shop: Fancher v. Grass, 60 Iowa, 505; Norcross v. Thorns, 81 Am. Dec. 588; to a powder-magazine: Emory v. Hazard Powder Co., 53 Am. Rep. 730; to potteries emitting dense volumes of soot and smoke: Ross v. Butler, 97 Am. Dec. 654. and note. See note to Souse v. Martin, 51 Am. Rep. 467-475. April, 1887.] BARRY v. TERKILDSEN. 55 BARRY v. TERKILDSEN. [72 CALIFORNIA, 254.] PLAINTIFF is NOT GUILTY OF CONTRIBUTORY NEGLIGENCE, because, assuming a sidewalk in a populous city to be safe, she permitted her attention to be momentarily attracted in another direction, and fell into a hole in such sidewalk, from which the covering had been removed. FACT THAT ACT OF THIRD PERSON MAY HAVE CONTRIBUTED to the final catastrophe will not exonerate a defendant sued for injuries resulting from an act which is unlawful, or is so hazardous as to be in the nature of a nuisance on account of the occasion for accident and injury which it continuously presents to innocent persons. SIDEWALK. One who maintains a hole in a sidewalk in front of his prem- ises in a populous city, over which is a movable trap-door, is answerable to a person who is injured by falling through such hole at a time when it was open and unguarded, though it is not shown by whom the door was removed and the hole left open and unguarded. RIGHT TO KEEP OPENINGS IN SIDEWALKS in front of one's premises, if it exists at all, must come from legislative declaration, municipal license, or general usage. ACTION for damages for injuries suffered from falling through a hole in a sidewalk. Judgment for plaintiff. F. M. Husted, for the appellant. /. D. Sullivan and Horace Q. Platt, for the respondent. By Court, MCFARLAND, J. Plaintiff, a girl about nineteen years old, started somewhat in a hurry from her father's house, about nine o'clock in the morning of October 11, 1880, to go to school. Appellant owned the adjoining premises, and in the sidewalk in front of said premises there was a hole covered by a wooden trap-door, which appellant used for his private convenience. This hole was only a few feet from the entrance to the residence of plaintiff's father. On the morn- ing above referred to, this hole was opened, and entirely un- guarded and unprotected. As plaintiff went out of the house, her attention was attracted for a moment by some children playing on the street, and not noticing the hole, after taking a couple of fjteps she fell headlong into it. The hole was quite deep, and plaintiff was very seriously injured by the fall. She had been accustomed to travel over this sidewalk daily on her way to and from school, and never knew before that the hole was there. The premises are on Post Street, a populous street of the city of San Francisco. The evidence did not show who had removed the trap-door from the top of the hole. The jury found a verdict in favor of plaintiff for 66 BARRY v. TERKILDSEN. [Cal. three thousand dollars, and defendant appeals from the judg- ment, and from an order denying a new trial. Appellant makes many of the points which are usually raised in actions for damages of the class to which the case at bar belongs. In our opinion, there is nothing in the point that respond- ent was guilty of contributory negligence. A sidewalk of a street in a city not near a crossing may be taken by one passing over it to be a safe and not a dangerous place. In this case, the respondent had a right to presume that the side- walk was in the same condition in which she had always found it; and the fact that her attention was momentarily attracted in another direction a thing of the most common occurrence to travelers along a street falls far short of that contributory negligence which in law defeats an action for damages. Most of the other points made by appellant in various forms, when grouped together, present this proposition or theory: that as respondent failed to show that appellant, or any one of his employees or servants, removed the trap-door from the hole, and did not negative the theory that a stranger might have removed it, therefore there is a want of proof of that negligence which is the gist of an action for personal damages. To this proposition there is a multitude of authorities, more or less applicable; and they are widely divergent. We think, however, that through the numerous cases upon the subject may be seen a distinction which is determinative of the case at bar. When a person pursues a business or does an act perfectly lawful in itself, and not in its nature so hazardous or so conducive to injury as to be of the character of a nui- sance, then he can be held liable for injuries to others arising therefrom only when he has been guilty of negligence in his manner of carrying on the business or doing the act. But when the act is unlawful, or is in its character so hazardous as to be in the nature of a nuisance on account of the occa- sion for accident and injury which it continuously presents to innocent persons, then the party is liable, although the agency of a stranger may have contributed to some extent to the final catastrophe. At least, in such a case, the injured party ought not to be compelled to show affirmatively that there was no intervention of a third person which contributed to the re- sult. April, 1887.] BARRY v. TERKILDSEN. 57 Whether or not appellant had any lawful authority to main- tain the excavation and trap-door at all is a somewhat doubt- ful question; but the weight of authority seems to be to the point that he had not. There is no evidence in the case of any custom, nor does it appear whether or not appellant had the fee to any part of the street. Judge Dillon, in his work on municipal corporations, states what seems to be a fair sum- ming up of the authorities on the subject. At section 699, speaking of the right to make " openings in sidewalks," he eays: "If the fee of the street is in the municipality in trust for the public uses, as it frequently is, it extends to the whole street, including the sidewalk; and the adjoining lot-owner would, it seems clear, have no right, as against the public, or the municipality charged with the control of the streets, to appropriate them to this use If the fee of the street is in the adjoining owner, as it frequently is, the question as to the rightfulness of such a use of the sidewalk may not be so plain; and yet even in this case the public right must be para- mount to individual interests, and the rights of the public are not limited to a mere right of way, but extend, as we have shown, to all beneficial uses, as the public good or convenience may from time to time require The correct view would eeem to be that all rights of this character must come from legislative declaration or municipal license, express or implied from general usage." Appellant showed no right from legislative declaration, mu- nicipal license, or general usage. But if there be any principle upon which there could be based a right of appellant to maintain the excavation and trap in the absence of any municipal action upon the subject, that right would disappear before an ordinance of the city, which was introduced in evidence by respondent. The ordi- nance was passed in July, 1880, and was a re-enactment of a similar ordinance passed in May, 1866. The first part of sec- tion 6 of said ordinance is as follows: "No person shall con- struct, or cause or suffer to be constructed, under the sidewalk adjoining any premises belonging to him, or in his possession or under his control, any area or vault, except in conformity with the following specifications." Then follows a large num- ber of specifications, which provide with particularity how such vaults and their coverings shall be constructed, no one of which does appellant show a compliance with. They provide for the use of stone, brick, and iron, and against the use of 58 BARRY v. TERKILDSEN. [Cal. wood. In the latter part of the section it is provided as fol- lows: " No aperture through the sidewalk into a vault shall exceed a superficial area of twenty-four square feet. Every such aperture shall be covered with an iron cover, and shall be securely closed when not in actual use." It affirmatively appears that the covering or trap-door of the vault of appellant was wooden, and that a few days before the accident he had employed a man to repair it with wooden planks. It appears, therefore, 1. That appellant had no authority of law to main- tain the structure; and 2. That its maintenance was in direct violation of law. Moreover, an excavation in the sidewalk of a populous street of a city, with a movable cover, liable to be removed by any careless or mischievous passer-by, is so dangerous a pitfall as to be, in its character, of the nature of a nuisance; and when not authorized by law, it would be a hard rule to require an innocent party injured thereby to prove that the injury was not caused in part by the act of a third person. No such rule is applicable to the facts of this case. It appears that a few days before the accident, appellant employed a Mr. Krone to make a few repairs to the house situated on appellant's premises, and also to repair one of the planks on the trap-door in the sidewalk, all to cost six dollars. There is no evidence that any act or negligence of Krone contributed to the accident; but appellant, assuming, we sup- pose, that Krone's negligence might have so contributed, invokes the principle that the owner of premises is not respon- sible for the negligence of an independent contractor. But if such a trivial contract could bring that principle into action in any case, it would not, under the views herein expressed, be a defense in the case at bar. Appellant's specific objections to the refusal of the court to grant a nonsuit, and to the giving and refusing of certain in- structions to the jury, simply raise, in various forms, the ques- tions above discussed. We think that the nonsuit was properly denied, and that the case was correctly and fairly given to the jury. There was no error in the instructions that " plaintiff, if en- titled to a verdict, is entitled to damages for her pain and suffering, both bodily and mental." Judgment and order affirmed. April, 1887.] BARRY v. TERKILDSEN. 59 SHARPSTEIN and THORNTON, JJ M concurred. Hearing in bank denied. CONTRIBUTORY NEGLIGENCE IN VOLUNTARILY PASSING OVER STREET KNOWN TO BE DANGEROUS BY REASON OF ICE UPON IT: ScJicpfter v. Sandusky, 31 Am. Rep. 533; City of Erie v. Magill, 47 Id. 739; City of Quincy v. Baclier, 25 Id. 278. The fact that one's attention while passing along a public street is ar- rested by some object of interest or curiosity, causing him to stop, or not to give attention to his immediate surroundings, does not present such a case of contributory neglect as to preclude his recovery for injuries received: Husaey v. Ryan, 54 Id. 772. For cases brought to recover for injuries suffered from falling into holes in streets or sidewalks, see City of Montgomery v. Wright, 47 Id. 422; Bruker v. Town of Covington, 35 Id. 202. A landlord is not an- ewerable if the hole or excavation was made by permission of the city, cov- ered in a safe and substantial manner, and the injury arose through the act of a third person, whereby the stone supporting the cover of the hole was broken, of which act the landlord had no knowledge: Wolf v. Kilpatrick, 54 Id. 672. FOR EXCAVATION MADE BY CITY in or near a public highway, and left un- guarded, it is answerable for injuries sustained by a child, who, while at play, fell into such excavation: City of Indianapolis v. Emm.tlm.an, 58 Am. Rep. 65. FOR OBSTRUCTION OR EXCAVATION IN PUBLIC STREET, made by the lot- owner, and not licensed by the municipal authorities, he is answerable, irre- spective of the question of his negligence. "The public are entitled to an unobstructed passage upon the streets, including the sidewalks of a city, but a structure such as that proved in this case was an obstruction. It was suffi- cient for the plaintiff to prove that in passing along the sidewalk he was injured by this structure, which was appurtenant to defendant's premises ": Clifford v. Day, 81 N. Y. 56. RIGHT OF ONE USING STREETS OP CITY AS PLAY-GROUND, as where a child was injured while rolling a hoop, or playing tag, to recover for injuries sus- tained from defects in a street has been questioned, on the ground that the use was one not contemplated by law. But it is believed that the using of treets for purposes of play or recreation will not defeat the recovery of an injured person, unless, taken with other facts, it shows that he was guilty of contributory negligence: City of CJacago v. Keefe, 55 Am. Rep. 860, and note. LIABILITY OF MUNICIPAL CORPORATION FOR NON-REPAIR OF STREETS: Se note to Browning v. Springfield, 63 Am. Dec. 350-355, and to Perry v. City qj Worcester, 66 Id. 434-442. 60 PALMER v. HOWARD. [Cal. PALMER v. HOWARD. [72 CALIFORNIA, 293.] UNDER EXECUTORY CONTRACT OF SALE RESERVING TITLE UNTIL PAYMENT is made, a bonaf.de purchaser from the vendee acquires no valid claim to the property. POLICY or LAW is AGAINST UPHOLDING SECRET LIENS AND CHARGES to the injury of innocent purchasers and encumbrancers for value. MORTGAGES. The provisions of the law concerning mortgages cannot be evaded by mere shuffling of words. INSTRUMENT is MORTGAGE, no matter what the parties may characterize it, where it clearly appears therefrom that for all practical purposes the ownership of the property is intended to be transferred and a lien for the purchase price reserved to the seller. INSTRUMENT is MORTGAGE, AND NOT EXECUTORY CONTRACT OF SALE, where it recites the loan of certain articles, that if the price set against them is paid they shall belong to the borrower, otherwise to the lender; that notes or drafts given are not to be considered payments till paid; that the borrower agrees to pay the prices named; that the property is not to be removed from a designated lot without the assent of the lender; and that if the borrower fail to meet any of the payments, the lender may take the property and dispose of it, rendering to the borrower all sur- plus after paying the price agreed upon, etc. ACTION of claim and delivery. Judgment for plaintiffs. Levi Chase, for the appellant. W. J. Hunsaker, for the respondents. By Court, HAYNE, C. The plaintiff delivered to one St. Clair and wife certain personal property, under a writing, of which the following is a copy: " SAN FRANCISCO, March 26, 1885. "D. PARKER ST. CLAIR AND WIFE, San Diego, Cal.: Bor- rowed and received of Palmer and Rey, 405-407 Sansome Street, San Francisco, the following articles in good order. If the price set against them is paid, as per memorandum below, the property is then to belong to said borrower; otherwise, it remains the property of Palmer and Rey. Notes and drafts, or renewals of the same, if given, are not to be considered pay- ment until they are paid. In the mean time the borrower is to keep the property in good order, and agrees to pay the price as per memorandum below, keep the property sufficiently in- sured for the benefit of the said Palmer and Rey, depositing the policy of insurance with them, and may use the property free from any other charge. " Said property is not to be removed from lot L, in block thirty-six (36) in the city of San Diego, Cal., without the writ- May, 1887.] PALMER v. HOWARD. 61 ten consent of Palmer and Rey. Should said borrower fail to meet any of the payments at the time specified, or to keep the property satisfactorily insured or in good order, then Palmer and Rey may take the said articles and dispose of them to the best advantage, rendering to said borrower all surplus, if any, after paying the price agreed upon and the expenses of removal and sale.'' Then follows a list of the articles, and a specification of the installments of the price, amounting in all to $2,295.45. The St. Glairs paid but one installment of the price, and did not keep the property insured, but mortgaged the same to the defendant for $925, and subsequently left for parts un- known. The question is as to the effect of the agreement quoted. It is settled in this state that even bona fide purchasers from the person to whom personal property is delivered, under an executory contract of sale, get no valid claim to the prop- erty: Kohler v. Hayes, 41 Cal. 455; Hegler v. Eddy, 53 Id. 598. This is in accordance with the great preponderance of author- ity elsewhere: Harkness v. Russell, 118 U. S. 663. The reason is, that in such cases the title to the property does not pass, and the maxim, Nemo plus juris, etc., applies. But in applying this rule, it must be remembered, in general, that the policy of the law is against upholding secret liens and charges to the injury of innocent purchasers or encum- brancers for value, and in particular, that mortgages of per- sonal property are permitted only in certain specified cases, and then only upon the observance of certain formalities, de- signed to insure good faith, and to give notice to the world of the character of the transaction. These provisions as to mort- gages cannot be evaded by any mere shuffling of words. Where it is clear from the whole transaction that for all prac- tical purposes the ownership of property was intended to be transferred, and that the seller only intended to reserve a security for the price, any characterization of the transaction by the parties, or any mere denial of its legal effect, will not be regarded. The question, it is true, is one of intention; but the intention must be collected from the whole transaction, and not from any particular feature of it. In the present case, it seems to us that the intention must be taken to have been to transfer the ownership of the property, reserving a security for the price, and nothing more. The possession was delivered. The promise to pay was absolute: 62 PALMER v. HOWARD. [Cal. Hart v. Barney & Co., 7 Fed. Rep. 553. If Palmer and Key, on reselling the property, had sued the St. Clairs for the difference between the agreed price and what the property brought on the resale, we see no defense the latter could have made. Moreover, Palmer and Rey were bound to resell the property if they repossessed themselves of it. They could not have kept it as an owner; and not only so, but they were bound to resell for the benefit of the St. Clairs. The provision is, that if they retake they shall sell "to the best advantage, rendering to said borrower all surplus, if any, after paying the price agreed upon, and the expenses of removal and sale." This is not a feature of an executory contract of sale. It is the chief characteristic of a mortgage, and is the very sum and substance of proceedings for foreclosure. In a controversy between debtor and creditor, as to whether a transaction was a mortgage or a sale, such a stipulation would be conclusive that it was a mortgage. Why should it have a different im- port in this case? We think, therefore, that the intention was to vest the sub- stantial ownership in the St. Clairs, and that the sole object of the seller was to secure payment of the price; and this in- tention appears from the provisions of the contract itself. Such being the case, the statement that the property " remains the property of Palmer and Rey," etc., is inconsistent with the nature of the transaction, as shown by the contract itself, and is a mere disguise for the purpose of evading the requirements of the law as to mortgages of personal property. To sustain the position of respondent would be, in effect, to add to the chapter on mortgages a provision that in every case where personal property is sold the seller may take a mortgage thereon for the price, and that, too, without the affidavit and recording which are required in the cases where such mort- gages are allowed. This conclusion is not in contravention of the cases cited by respondent. For in none of them, except, perhaps, a case from an inferior court of New York (21 Barb. 581), did the provision above referred to exist. On the other hand, it is in accordance with the decision of the supreme court of the United States in Heryford v. Davis, 102 U. S. 235, which was not in reference to any local law. That court maintains to its fullest extent the rule as to conditional sales which pre- vails in this state: Harkness v. Russell, 118 Id. 663. But it May, 1887.] PALMER v. HOWARD. 63 held that the features above adverted to took the case before it out of the general rule. For these reasons, we advise that the judgment and order be reversed, and the cause remanded for a new trial. FOOTE, C., and BELCHER, C. C., concurred. The COURT. For the reasons given in the foregoing opinion, the judgment and order are reversed, and cause remanded for a new trial. Hearing in bank denied. CONDITIONAL SALE, WHEN ACCOMPANIED BY DELIVERY OP POSSESSION of the property to the vendee, is well calculated to enable him either to make a sale of the property, or to obtain credit upon his apparent ownership of it, and thereby to entrap innocent purchasers and encumbrancers. On this account such sales are not looked upon with favor, and, in some of the states, they will not be sustained when brought in conflict with the interests of bonaf.de purchasers and encumbrancers, nor even as against judgment creditors who have levied upon the property as that of the vendee: March v. Wright, 46 111. 487; 95 Am. Dec. 455; Schweitzer v. Tracy, 76 111. 345; Stadt- Jield v. Huntsman, 92 Pa. St. 53; 37 Am. Rep. 661; Brunswick v. Hoover, 95 Pa. St. 508; 40 Am. Rep. 674; Vaughn v. Hopson, 10 Bush, 337. But the very decided preponderance of the authorities is to the contrary, and maintains that, in these cases, as well as in others, one who purchases prop- erty or obtains a lien thereon, must ascertain for himself, as best he can, what is the title of the party with whom he deals, and that in no event can his title be any better than that of his vendor: Sanders v. Keber, 28 Ohio St. 636; Bailty v. Harris, 8 Iowa, 331; 74 Am. Dec. 312; Moseley v. ShaUuck, 43 Iowa, 643; Miller v. Steen, 30 Cal. 402; 89 Am. Dec. 124, and note; Morgan v. Kidder, 55 Vt. 370; Ketchum v. Brennan, 53 Miss. 596; Mount v. Harris, 1 Smedes & M. 185; 40 Am. Dec. 89; Hook v. Linderman, 64 Pa. St. 499; 3 Am. Rep. 612; Zttchtntann v. Roberta, 109 Mass. 53; 13 Am. Rep. 663; Cole v. Berry, 42 N. J. L. 308; 36 Am. Rep. 511; Lewis v. McCobe, 49 Conn. 140; 44 Am. Dec. 217; Auttman v. Mallory, 5 Neb. 178; 25 Am. Dec. 478; Sumner v. Woods, 67 Ala. 139; 42 Am. Rep. 104; Loomia v. Bragg, 50 Conn. 228; 47 Am. Rep. 638; Singer M. Co. v. Cole, 4 Lea, 459; 40 Am. Rep. 20; Freeman on Executions, sec. 124. QUESTION WHETHER TRANSACTION is MORTGAGE OR CONDITIONAL SALE. The question still remains, however, whether a particular transaction ia really a conditional sale, or whether the parties have put it in the form of euch a sale for the purpose of concealing its real nature, and of obtaining the advantages of a conditional sale when their real transaction is of an en- tirely different character. Thus, in many of the states, there are provisions with respect to the mortgage of chattels, under which such mortgages are required to be executed with certain formalities, and, generally, to be re- corded in some public office of the county; and in some of the states the class of personal property which may bo the subject of a valid chattel mort- gage is very limited. In order to evade the provisions of the statutes regard- ing chattel mortgages, there are many instances in which the transaction is put in the form, or called by the name, of a conditional sale. Recently the court* have been inclined to scrutinize these transactions more closely, and 64 PALMEK v. HOWARD. [CaL to refuse to be bound by the name and form given them by the parties, if satisfied from the whole transaction that it was not a conditional sale. With respect to the construction of contracts claimed to be conditional sales, the supreme court of the United States has very wisely said: " The answer to this question is not to be found in any name which the parties may give to the instrument, and not alone in any particular provision it con- tains, disconnected from others, bnt in the ruling intention of the parties, gathered from the language they have used. It is the legal effect of the whole which is to be sought. The form of the instrument is of little account ": Hertford v. Davis, 102 U. S. 243. The contract here in question was between two corporations, one of which was a builder of cars, and the other the owner and operator of a railway. It recited that the former had constructed certain cars to be used on the rail- way of the latter for hire, and that the former loaned the latter the said cars for hire on such railway for the period of four months, and not elsewhere; that the railway company had executed to the manufacturing company three certain notes, which were to be collected at maturity, and their proceeds held as security for the return of the cars when demanded, and that the railway company had the privilege of purchasing the cars at any time on paying the price fixed by the contract; that until such payment it should have no right, title, or interest in the cars, except to use them, and no power to dispose of, mortgage, or pledge them; and that the cars were to be deliv- ered to the manufacturing company when demanded, in default of the pay- ment of said sum, with interest; that, on default in the payment of any of said notes, the manufacturing company might take possession of all of said cars, and retain all payments made on any of such notes, and would sell said cars, and return to the railway company any surplus remaining out of the net proceeds of the sale over and above the amount due on the unpaid notes; and, finally, that, on the payment of all of the notes, the manufacturing com- pany would convey the cars to the railway company. This contract was con- strued not to be a conditional sale, but an attempt to obtain or reserve a lien in a form forbidden by the laws of the state; and the property was held to be subject to execution against the railway company. The grounds of this decision were, that no price of the hire is mentioned or alluded to; that the manufacturing company took notes for the full price of the cars, and exacted security for their payment, and would therefore realize the price of the cars before the four months had elapsed; that no part of the money was to be returned to the railway company in any event, and in the event of the cars being taken from the railway company and sold, it was entitled to such portion of the proceeds of the sale as remained after paying the demands of the manufacturing company. " In view of these pro- visions," said the court, "we can come to no other conclusion than that it was the intention of the parties, manifested by the agreement, the ownership of the cars should pass at once to the railway company, in consideration of their becoming debtors for the price. Notwithstanding the efforts to cover up the real nature of the contract, its substance was an hypothecation of the cars to secure a debt due to the vendors for the price of the same. The rail- way company was not accorded an option to buy or not. They were bound to pay the price, either by paying the notes or surrendering the property to be sold in order to make payment. This was in no sense a conditional sale. This giving the property as a security for the payment of the debt is the very essence of a mortgage, which has no existence in the case of a condi- tional sale. " June, 1887.J PEOPLE v. KRAKEB. 66 [!N BANK.] PEOPLE v. KRAKEE. 172 CALIFORNIA, 459.] TERM " ACCOMPLICE " INCLUDES ALL PERSONS concerned in the commission of an offense, irrespective of the grade of their guilt. UNCORROBORATED EVIDENCE OF THIEF will not justify the conviction of one indicted for receiving stolen goods, knowing them to have been stolen. WHETHER WITNESS is ACCOMPLICE is a question of fact for the jury PROSECUTION for receiving stolen goods, knowing them to have been stolen. The defendant was convicted, and his mo- tion for a new trial denied. C. Ben Darvin and Crittenden Thornton, for the appellant. George A. Johnson, attorney-general, for the respondents. By Court, PATERSON, J. Defendant was convicted of the crime of receiving stolen goods, knowing them to have been stolen. At the trial, one H. G. Matthewson, who was charged in the information with the stealing of the goods, was a witness against the defendant, evidently the principal witness. At the conclusion of the testimony and argument, the de- fendant asked the court to instruct the jury substantially in the language of section 1111 of the Penal Code, which reads as follows: "A conviction cannot be had on the testimony of an accom- plice, unless he is corroborated by other evidence, which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient, if it merely shows the commission of the offense, or the circumstances thereof." The court refused to give the instruction asked, and in the charge to the jury, referring to the claim of defendant's coun- sel that Matthewson was an accomplice, said: " I charge you in plain terms that if you believe the testimony of Horace G. Matthewson, and from that testimony you are satisfied to a moral certainty that the defendant did receive the property mentioned in the information from him, and that at the time of the receipt thereof by the defendant he knew and was in- formed that it was stolen property, and he so received it for AM. ST. Rtr., VOL. I. -ft 66 PEOPLE v. KRAKER. [Cal. his own gain, or to prevent the owner from again possessing it, then you are authorized to convict the defendant on the testimony of said Matthewson." Subsequently, on motion for new trial, the learned judge had some doubt as to the correctness of his instruction, but deem- ing it best to have the question settled, denied the motion, giv- ing the defendant the benefit of a certificate of good cause. We think the instruction given by the court was erroneous. The proposition has never been directly passed upon in this state, but in People v. Levison, 16 Cal. 99, 76 Am. Dec. 505, the court, in commenting upon certain rulings, said: " It also leaves the inference that the unsupported testimony of the thief is sufficient to establish the defendant's guilt." An accomplice includes all persons who have been concerned in the commission of an offense, and the grade of guilt of the witness is not important: Abbott's Law Diet.; Cross v. People, 47 111. 152. In England, where there is no statutory provision against a conviction on the uncorroborated testimony of an accomplice, the judges always instruct the jury that the uncorroborated testimony of the thief in cases of this kind is not sufficient: Regina v. Robinson, 4 Fost. & F. 43; Regina v. Pratt, 4 Id. 315. In that portion of the charge quoted above, the court took from the jury the question whether, as a matter of fact, Matthewson was an accomplice, considering, it seems, only the abstract proposition of law as to whether the mere fact that the witness was the thief made him an accomplice of the one who received the goods. But the question as to whether the witness was an accomplice in the commission of the offense is a question of fact for the jury: State v. Schlagel, 19 Iowa, 169. In Texas, under a statute like section 1111, supra, the court held that if the witness was an accomplice in any material fact, the jury should have been instructed as to the value of his evidence without corroboration: Miller v. State, 4 Tex. App. 251. And in Massachusetts it is held that " the court should instruct the jury as to what constitutes an accomplice, and leave it for them to determine whether the witness was in fact an accomplice": Commonwealth v. Elliot, 110 Mass. 106; Com- monwealth v. Ford, 111 Id. 394. Judgment and order reversed, and cause remanded for new trial. June, 1887.] MILLER v. DUNN. 67 SEARLS, C. J., and McKiNSTBY, MCFARLAND, TfeftK,* and SHARPSTEIN, JJ., concurred. Rehearing denied. TESTIMONY OF ACCOMPLICES ADMISSIBILTTY AND UMAA oi: See note to ComnumteeaUh v. Price, 71 Am. Dec. 671-678. PN BANK.] MILLER v. [72 CALIFORNIA, 4W.] WORDS USED IN CONSTITUTION WILL BK ACCORDED their popular rather than their technical signification, union* the nature of the subject, or the text, suggests their use in their technical sense. They must be taken in their ordinary and common acceptation, because they are pre- sumed to have been so understood oy tneir frainers and by the people. WORD "Lxw," AS USED IN CoNsrrnwxUN, generally signifies a statute, bill, or legislative enactment, regardless of its constitutionality or validity. STATUTES WILL NOT BE ADJUDGED t/hcoNSTrruTiONAL, if there is a fair doubt as to their validity. UNCONSTITUTIONAL LAW is NOT VOID AB INITIO IN ALL CASKS. It will protect citizens dealing with /public officers under its provisions until it is adjudged unconstitutional. CONSTITUTIONAL LAW. Legislature may authorize payment of a claim created under and by virtue of an unconstitutional law, though it is de- clared by the constitution to have no power to authorize the payment of any claim created without express authority of law. APPLICATION for writ of mandamus to compel the defendant, Dunn, as state controller, to draw his warrant for the payment of certain claims a required by the act of the legislature of California, approved May 10, 1885. This act was claimed to be invalid under section 32, article 4, of the state constitution, which is as follows: " Section 32. The legislature shall have no power to grant, or authorize any county or municipal authority to grant, any extra compensation or allowance to any public officer, agent, servant, or contractor after service has been rendered, or a contract has been entered into and performed, in whole or in part, nor to pay, or to authorize the payment of, any claim hereafter created against the state, or any county or municipality of the state, under any agreement or contract made without express authority of law; and all euch unauthorized agreements or contracts shall be null and void." The writ was ordered to issue. The controller appealed. 68 MILLER v. DUNN. [Cal. D. M. Delmas, for the appellant. A. L. Hart, James A. Waymire, and William C. Belcher* for the respondent. By Court, PATEBSON, J. In 1880 the legislature passed an act entitled "An act to promote drainage," which was approved by the governor April 23, 1880: Stats. 1880, p. 123. In the passage of this act, all the proceedings necessary to the effective enactment of a law by the legislature were had; and it was regularly and duly approved by the governor. According to the provisions of this act, " Drainage District No. 1 " was regularly organized, and public work under it commenced. The directors of the district, after proposals for bids, let contracts to different parties to do various parts of the work, as they were expressly authorized by the act to do. Respondent, among others, took two such contracts, and the amount involved in this action is for work and labor done and materials furnished under such contracts. There is no ques- tion as to the justness of his claims. But after he had done the work and furnished the materials under his contracts, and before he had received his pay therefor, sued for in this action, this court, in an action brought against the directors of said district, decided that said " act to promote drainage " was un- constitutional. All proceedings under said act ceased, and the state controller refused to pay any more claims under it. This being the situation, and some just claims acquired un- der the act remaining unpaid, the legislature passed an act, approved March 10, 1885 (Stats. 1885, p. 78), entitled "An act to appropriate money to pay the indebtedness incurred under an act entitled, 'An act to promote drainage/ approved April 23, 1880." This act expressly requires the controller to draw his warrants in favor of certain audited claims which accrued under said act of 1880; and plaintiff's demand here sued for is admitted to be one of such claims. The appellant, controller, refused to draw his warrants for respondent's claims, and this proceeding in mandamus was in- stituted to compel him to do so. The court below granted a peremptory writ, and the con- troller appeals. The judgment of the court below should be affirmed. It is claimed by appellant that the act of April 23, 1880, having been held to be unconstitutional in the case of People V. Parks, 58 Cal. 624, was void ab initio t the same to all in- June, 1887.] MILLER v. DUNN. 69 tents and purposes as if it never had been enacted, a pure nullity; that an unconstitutional law is no law at all for any purpose, and that the word " law," in article 4, section 32, was used in its full sense, i. e., a valid constitutional law. On the other hand, it is contended by respondent that the word "law" in its popular sense is a statute passed by the legislature, and approved by the executive, and it is in this sense that the word was employed in section 32. It is useless to attempt to apply iron-clad rules of interpre- tation to any phrase or word used in a constitution. Espe- cially is this true of a word which has a technical as well as a popular meaning. There is no word in the language which, in its popular and technical application, takes a wider or more diversified signification than the word "lav," its use in both regards is illimitable. In determining the office of words used in a constitution, the object is to give effect to the intent of the people adopting it: Cooley on Constitutional Limitations, 5th ed., sec. 66. And " where a word having a technical as well as a popular meaning is used in the constitution, the courts will accord to it its popular signification, unless the very nature of the subject indicates, or the text suggests, that it is used in its technical sense": Weill v. Kenfield, 54 Cal. Ill; Sprague v. Norway, 31 Id. 174. Words used in a constitution should be construed in the sense in which they were employed. They " must be taken in the ordinary and common accepta- tion, because they are presumed to have been so understood by the framers, and by the people who adopted it. This is unquestionably the correct rule of interpretation. It, unlike the acts of our legislature, owes its whole force and authority to its ratification by the people; and they judged of it by the meaning apparent on its face according to the general use of the words employed, where they do not appear to have been used in a legal or technical sense": Manly v. State, 7 Md. 135. The term " law," as used in its popular sense, and in its com- mon acceptation by " those for whom laws are made," it may be admitted, includes the whole body or system of rules of con- duct, including the decisions of courts as well as legislative acts, but it certainly does not include that refined, technical, and astute idea claimed by appellant, which recognizes noth- ing within the meaning of the term which is not constitution- ally and technically perfect. In addition to considering the independent, technical, and popular meanings of a word used in an act or constitution, we 70 MILLER v. DUNN. [Oal. may look at other sections of the same instrument for the sense in which the word is used, as an aid to determine whether it has been used in its popular sense in the particular provision under consideration: People v. Eddy, 43 Cal. 331; 13 Am. Rep. 143. A word repeatedly used in a statute will bear the same meaning throughout the instrument, unless it is ap- parent that another meaning is intended: Pitte v. Shipley, 46 Cal. 154; Hoag v. Howard, 55 Id. 564. Upon an examination of the provisions of the constitution in which the word " law " is used, it will be found in a majority of instances that it has been employed in the sense of a statute, bill, or legislative en- actment, regardless of the constitutionality or validity of the act. Thus it is said : " No law shall be passed to restrain or abridge the liberty of speech or of the press": SG. 9, art. 1. "No ex post facto law shall ever be passed": Sec. 16, art. 1. "The enacting clause of every law shall be as follows": Sec. 1, art. 4. "The legislature shall not pass local or special laws in any of the following cases," etc. : Sec. 25, art. 4. "The legis- lature shall not pass any laws permitting the leasing .... of any franchise ": Sec. 10, art. 12. When speaking of certain requisites of a valid law, however, the framers of the constitu- tion did not use the words "act" and "law" interchangeably. Thus it is provided that " no bill shall become a law without the concurrence," etc.: Sec. 15, art. 4. "Every bill which may have passed the legislature shall, before it becomes a law, be presented to the governor": Sec. 16, art. 4. Again, it is provided that " the making of profit out of county, city, or other public money, or using the same for any purpose not authorized by law, .... shall be a felony." Can it be said that those who framed and adopted the constitution intended to use the word " law " in this section to mean a law absolutely unimpeachable on any ground? that every officer should handle and place the moneys intrusted to him at his peril, no matter how fair and regular the law directing him may be on its face ? If yea, " then indeed," as was said in St. L. & S. F. R, R. Co. v. Evans and Howard Brick Co., 85 Mo. 307, " are the rights of the citizen to be sacrificed on the altar of mistake, and the statute is to be made a veritable pitfall and snare." And so it is with respect to section 32. If it places a citizen who has dealt with the state under circum- stances like those in the case at bar beyond the pale of legis- lative relief for acts done by him prior to discovering the invalidity of the law, it will be very unsafe for any one to deal June, 1887.] MILLER v. DUNN. 71 with our officers, unless he be possessed of that superhuman intuition or mediate intelligence which alone can tell how the question of the validity of such an act may be raised and de- termined after he has performed the work. Of course there is DO moral obligation on the part of the state which can be enforced upon equitable principles, nor does the good faith of the party dealing with the state cut any figure in the case, if, in fact, the work was done " without ex- press authority of law"; for this provision was placed in the constitution to cut off all claims based upon mere good faith and equity. There was a feeling, which had been long-suffer- ing, that there should be some inhibition to prevent the legis- lature from allowing the payment of extra compensation to officers who, subsequent to their election or appointment, dis- covered that the regular salary was insufficient, and also to prevent relief bills in favor of those who had dealt with state and municipal officers, acting without express authorization from any source, or under palpably unauthorized and invalid contracts, and who were constantly asking the legislature to consider their misfortunes in pity, and regard them as deserv- ing subjects of public benevolence. All this was doubtless well understood, and the phrase " without express authority of law " was used in view of the judicial and legislative his- tory of the state, and yet it is by no means clear that it was intended to prevent the payment of a just claim, expressly authorized by an act in due form, duly passed and approved, and within the scope of lawful legislation, simply because after the work has been done, the court may, upon great delibera- tion and searching investigation, declare the act for some rea- son such as defect in title or wrongful delegation of power unconstitutional. The case of Nougv.es v. Douglass, 7 Cal. 65, relied on by ap- pellant, is unlike the case at bar. In that case, and in People v. Johnson, 6 Id. 499, the legislature had contracted a debt admitted to be in excess of the three-hundred-thousand-dollar limit specified in the constitution, and the court held that until the claim was legalized by being submitted to a vote of the people, it could not be paid. There is no doubt as to the correctness of the decision in those cases. The constitutional inhibition contained in article 8 of the old constitution was BO clear that the conclusion, as said by the court, was " most ob- vious." The meaning of words similar to those in question here were not involved in that case. The court had no doubt 72 MILLER v. DUNN. [Cal. as to the meaning of the language used in article 8, and if we could say the same of section 32, which is before us, we should, of course, apply the same rule. But it follows, we think, from what has been said, that the meaning contended for by appellant is not necessarily implied in the language of section 32; and if there be a fair doubt as to the true construction of that section, we should refrain from declaring that the legislature and the governor have exceeded their authority in the passage and approval of the act of March 10, 1885, appropriating money to pay the indebtedness incurred under the so-called drainage act of April 23, 1880. The doctrine 'has been so often enunciated it has passed into an aphorism, that statutes will not be declared unconsti- tutional if there is a fair doubt as to their validity. The judi- cial department will not hesitate to interfere with the work of a co-ordinate branch of the government when the latter goes beyond its constitutional limitations, but the ground of inter- ference must be plain and substantial. Again, it is not a uni- versal rule, as claimed by appellant, that an unconstitutional law is void ab initio, and absolutely wanting in all binding force, and a nullity. There is at least an exception, viz., that an act duly passed or approved has the force of law to protect citizens dealing with public officers under its provisions up to the time that it is declared unconstitutional: Sessums v. Botts, 34 Tex. 335. And if a decision that an act is unconstitu- tional be afterward overruled, the statute will be deemed to be valid for the whole period: Pierce v. Pierce, 46 Ind. 86. It has been held that an act creating an office, though unconsti- tutional, is sufficient to give color of title, and that an officer acting under it is an officer de facto: Duff's Appeal (Common- wealth v. McCombs), 56 Pa. St. 436; Clark v. Commonwealth, 29 Id. 129. But whether this be supported by the weight of authority or not, " nothing is better settled," it is said in State v. Douglass, 50 Mo. 596, "than that the acts of an officer de facto (although his title may be bad) are valid so far as they con- cern the public, or the rights of third persons who have an in- terest in the things done. Without this rule, the business of a community could not be transacted It would cause a suspension of business till every officer's right de jure was established ": State v. Carroll, 38 Conn. 462; 9 Am. Rep. 409; Harbaugh v. Winsor, 38 Mo. 327; Wilcox v. Smith, 5 Wend. 231; 21 Am. Dec. 213; People v. Salomon, 54 111. 39; Ex parts Strang, 21 Ohio St. 610. It must be remembered that the act June, 1887.] MILLER v. DUNN. 73 of April 23, 1880, was judicially declared unconstitutional solely on the ground that under article 3 of the constitution the legislature could not delegate to executive officers such legislative powers as it had attempted to confer by that act. This was the only ground upon which the minds of a majority of the members of the court met: People v. Parks, 58 Cal. 645. It has never been claimed seriously that the work contem- plated by the act was beyond the power of the legislature to provide for in Borne manner. If the legislature had defined the boundaries of the several districts, instead of delegating the power to the judgment of the governor, surveyor-general, and state engineer, and had provided, in the manner it did provide, for the appointment of the three directors who were authorized to let, and who did in fact let, the contracts for the work, the result might have been different. The act has not been declared to be and is not necessarily unconstitutional in all of its parts. It is true, this court held that the directors had no authority to contract, but the creation of the office of director by the act, the appointment by the governor of three directors, and the ostensible authority conferred upon them by the act to contract, furnish some color of right to do the thing attempted by them. I do not wish to be understood as saying that the directors were officers de facto, with color of authority sufficient to bind the state, notwithstanding the unconstitutionality of the act under which the contract was let, and without regard to the provisions of section 32 as to "express authority of law." I cite the cases upon the effect of the acts of officers de facto eimply to show that an unconstitutional law is not always and for all purposes a nullity, so far as the rights of a citizen are concerned, and refer to the history of the case simply in illus- tration of my conclusion that after a citizen has dealt with the state under circumstances like those shown here, the case does not come within the purview of section 32, and the legis- lature is not prohibited thereby from authorizing the payment to him of such reasonable sums as shall to it seem proper. It is unnecessary to say whether in all cases an act duly passed and approved would be "express authority of law" within the meaning of that section. There may be statutes palpably violative of principles so plain and well understood as to be no authority or protection at all; but as to that I ex- press no opinion. Judgment affirmed. 74 MILLER v. DUNN. [Cal. SEABLS, C. J M and MCFARLAND and SHARPSTEIN, JJ., con- curred. TEMPLE, J., dissented. He denied that there was any common usage or popular sense in which the word "law "was given any other signification than that of a valid law; and insisted that as the constitutional phrase waa " without express authority of law," the word " law " was there used in its technical sense, for it could not be assumed that it was intended that a claim might be authorized by a law which was in itself without authority, and therefore invalid. He further contended that even were there no express constitutional prohibition, the legislature would be without power to author- ize the payment of a claim created in violation of the constitution, and in support of this position relied upon Nougues v. Douglass, 1 Cal. 65. He also was of the opinion that the statute under consideration operated as a gift to the beneficiaries, and was therefore forbidden under section 31, article 4, of the constitution, which declares that the legislature shall not have power "to make any gift, nor authorize the making of any gift, of any public money or thing of value to any individual, municipal or other corporation, whatever." Upon this point he said: " It is admitted that the contract ia utterly void; that it imposes no legal liability or obligation on the part of the state. The state has received, and will receive, nothing from the parties to whom this money is to be given. True, if the contract had been valid in legal contemplation, the state would have received a consideration in the ser- vice performed by reason of the contract, although there was nothing of ben- efit in it. Now, a gift is something bestowed without return. If this be not something bestowed without return, what is the thing returned ? Can there be any other reason for holding this appropriation not a gift except that it would be highly inequitable and unjust not to compensate the re- spondent for services rendered pursuant to an act of the legislature believed to be valid ? In other words, the claim is founded upon a moral obligation, which the state ought to recognize and satisfy. This construction, I submit, virtually repeals sections 31 and 32, article 4, of the constitution. What sense is there in prohibiting the contract, and declaring it void, if the legis- lature may nevertheless voluntarily perform the contract on the part of the state ? What practical purpose is served by forbidding gifts of the people's money or property, if the legislature can recognize and discharge a moral obligation ? The legislature must be the judge of the moral obligation, and would rarely ever care to make a gift where it could not claim the existence of a moral obligation. My brothers deny, as I understand the decision, that they hold any such doctrine. I hope this will prevent the decision from being regarded as a precedent upon this question; but will it ? I have shown that, disclaim it as they will, such is the real ground of the decision. Our successors will justly claim that it can be sustained on no other theory. This is the excuse for all relief bills. Can any one deny that the sole pur- pose of the provisions was to prevent this very legislation ? But I do not care to pursue the subject further. The constitution itself directs how laws shall be made, and of course the law meant must be a law passed as in the constitution provided. The whole claim seems to me baseless. A void con- tract based on a void law, ratified against the express prohibition of the constitution, constitutes a valid claim against the state." The decision in the principal case was received with surprise by the bar of the state in which it was made, and was generally spoken of as one in which June, 1887.] COBUEN v. GOODALL. 75 the equities of persona doing work, and advancing materials tinder the drainage act of 1880, had proved too strong for the law. The claims exist- ing under the drainage act of 1880 were contracted in unquestioned good faith on the part both of the commission and of the contractors and laborers who sought employment under it, and were such as ought to be paid, if it were possible to so construe the constitution as to permit their payment. Either unconstitutional enactments must be treated as void, or the attempt to fix any bounds of legislative authority must be abandoned. Legislators, when attempting to exercise an authority interdicted by the constitution, have no more legislative sanction for their act than has a judge in pro* nouncing judgments with respect to subject-matters over which he has no juris- diction. In neither case has the act or judgment any legal existence. To en- force this rule may operate harshly and to the prejudice of a few individuals who were so unfortunate as to mistake the law fixing limits to judicial and legislative authority. But not to enforce it is to subject the whole commu- nity to laws and decrees against which the fundamental law had guaranteed protection. If it be once established that a law is valid until judicially de- clared to be unconstitutional and void, then the legislature is invited to pass unconstitutional laws under the judicial assurance that they will operate at least until the judicial machinery, always tardy in action, has been set in motion, and enabled to mark them with the stamp of condemnation. If a statute is unconstitutional, and claims created under it are therefore invalid, how can they be validated by a subsequent statute, without announcing a rule of law to the effect that where the legislature has no power to enact a law it may nevertheless enact such law T that such enactment, though not T did, may, if carried into effect, be followed by a further enactment validat- ing, or at least compensating, the acts done under the first unauthorized en- actment? See Plielan v. San Francisco, 6 Cal. 540; Cooley on Constitutional Limitations, 188; Fisher v. McOirr, 61 Am. Dec. 381; Osborn v. United Slates, 9 Wheat. 868. LIABILITY OF PERSONS ACTING UNDER UNCONSTITUTIONAL STATUTE: See note to Kelly v. Bemis, 64 Am. Dec. 51-55. COBUBN v. GOODALL. [72 CALIFORNIA, 498.] ASSIGNEES OF LEASE HOLDING UNDIVIDED INTERESTS THEREUNDER in un- equal proportions, as tenants in common, are jointly and severally liable to the lessor for a breach of a covenant to repair or to surrender posses- sion. EMINENT DOMAIN. Order of judge putting plaintiff in possession of land* pending proceedings for their condemnation is void. RETURN OF SHERIFF ON WRIT OF RESTITUTION is PRIMA FACIE EVIDENCE only of the fact therein stated, in California. JUDGMENT IN EJECTMENT DOES NOT PRECLUDE PLAINTIFF FROM MAINTAIN- ING a subsequent action to recover damages for withholding possession of the premises, where the record in the former suit shows that all claims for such damages were withdrawn. JUDGMENT IN EJECTMENT is NOT CONCLUSIVE AS TO TIME OF OUSTER, when all claims for mesne profits and damages were withdrawn. 76 COBURN v. GOODALL. [Cal. LESSOR IRREVOCABLY ELECTS TO TERMINATE LEASE when he brings an action of ejectment against the lessees, or their assignees, to recover the leased premises. Therefore, he cannot recover for rent subsequently falling due, though no judgment has been rendered in the action of ejectment. RIGHT TO SUB FOR BREACH OF COVENANT TO SURRENDER POSSESSION 13 NOT WAIVED by a subsequent action of ejectment for the demised prem- ises, in which the recovery of damages is not sought. lie DETERMINING AMOUNT OF DAMAGES SUSTAINED BY FAILURE TO SUR- RENDER LEASED PREMISES to the lessor, the amount of profits derived by the defendants from a wharf and chute adjacent thereto is a proper sub- ject of inquiry, providing it is not taken as the measure of damages. It is proper to put the court in possession of all pertinent facts and circum- stances from the consideration of all of which the ultimate fact of the quantum of damages can be deduced. INTEREST is NOT ALLOWABLE in an action for the breach of a contract, if the damages sought to be recovered are so unliquidated and uncertain that they must be made certain by proof and adjudication. ACTION by plaintiff, in his own right, and as assignee of his co-lessor, Clark, against the defendants as assignees of a lease, to recover damages sustained by a breach of a cove- nant therein contained for the surrender of possession at its termination. The lease was made January 1, 1863, by the plaintiff and Jeremiah Clark to James Brennan, who assigned an undivided half to defendant Sudden, who assigned one fourth to defendant Fake. Brennan's remaining half-interest in the lease was assigned to defendant O'Farrell, who resigned one eighth to defendant Goodall, one eighth to defendant Wen- singer, and one eighth to defendant Nelson. During the pend- ency of the action, a dismissal was entered as to defendant Fake, and defendant O'Farrell died. No attempt was made to make his representatives parties to the action. The defendants re- fused, at the termination of the lease, to wit, October 1, 1872, to surrender five acres of the leased premises known as Pigeon Point. An action of ejectment was brought by the plaintiff against the present defendants and others to recover possession of the lands now in controversy, in which action a wharf and chute built from the shore on the demised premises below low- water mark into the ocean were claimed to be a part of the premises, on the ground that they had been affixed to the land, or had become an incident or appurtenant thereto. The plain- tiff recovered judgment, which, on appeal, was modified by striking therefrom so much thereof as includes the wharf and chute below the line of high water: See Coburn v. Ames, 52 Cal. 385; 28 Am. Rep. 634; and 57 Cal. 201. Subsequently this action was begun, and resulted in a judgment for the June, 1887.] COBURN v. GOODALL. 77 plaintiff against the defendants Sudden, Goodall, Nelson, and Wensinger, for $10,000 as damages, sustained by the breach of the covenant sued upon, and the additional sum of $6,520 interest. McAllister and Bergin, and Fox and Kellogg, for the appel- lants. Garber, Thornton, and Bishop, and Craig and Meredith, for the respondent. By Court, PATERSON, J. It was decided in Coburn v. Ames, 52 Cal. 385, 28 Am. Rep. 634, that the wharf and chute were not on the demised premises, were not affixed or appurtenant thereto, and therefore were not " improvements " within the meaning of that term as used in the lease. The court held that the plaintiff had no such right to the possession of the land below the line of high water as to enable him to main- tain ejectment, and the judgment of the lower court was modi- fied accordingly. Pending the appeal in that case, a receiver was appointed in the trial court to take possession of the prop- erty, collect tolls, and manage the wharf and chute. After judgment was modified in accordance with the order of this court, the receiver, under directions from the court in which he was appointed, paid over all the money in his hands to the plaintiff. The defendants, among whom were Goodall and Nelson, defendants herein, again appealed to this court, and it was held that as the plaintiff was not entitled to the posses- sion of the wharf and chute, he was not entitled to all of the profits derived from the use of them pending the litigation. The cause was accordingly again remanded for the adjust- ment of the accounts: Coburn v. Ames, 57 Cal. 204. This action was commenced on November 25, 1875. The lease which is made the basis of this suit contained a cove- nant that Brennan, the lessee, at the expiration of said lease, would surrender to Coburn and Clark (the lessors or their assigns), with such improvements as shall have been erected or made thereon, but there was nothing in the covenant pro- viding in terms that the lease should be binding upon the assigns of the lessees. The defendants are all assignees of undivided parts amount- ing to five eighths of the whole interest in the lease, viz.: Sud- den one fourth, Goodall one eighth, Nelson one eighth, and Wensinger one eighth. 78 COBURN v. GOODALL. [Cal. The action as to defendant Fake, who owned one quarter, was dismissed. The other defendant, O'Farrell, who owned one eighth, died pending the action, and his. representative has never been substituted. Judgment was rendered against the defendants Sudden, Goodall, Nelson, and Wensinger for $10,000, with interest thereon from commencement of suit, $6,520, total $16,520, and costs of suit. It is claimed that these four defendants, if liable at all under the covenant to surrender (which is denied), are liable only in respect of their privity of estate, and that such lia- bility is several and proportionate to the interest acquired by each of them. To this proposition we cannot assent. There are some authorities to that effect, but the weight of opinion, we believe, is contrary thereto, and with better reason it is held that while assignees of a lease hold as tenants in com- mon, they are jointly and severally liable on covenants to repair and to deliver up at the end of the term. These cove- nants, which are connected with the estate, run with the land, and vest in point of benefit and liability in the assignee, while the personal privity of contract between the lessor and lessee remains unaffected by the transfer: 1 Washburn on Real Property, 329, 435; 2 Platt on Leases, 351; Taylor on Land- lord and Tenant, 7th ed., sec. 530, note; Hayes v. Morrison, 38 N. H. 95; Fitch v. Johnson, 104 111. 117. The authorities cited, which relate to questions concerning the apportionment of rent, are not applicable, as payment of rent is an exception to the rule: Freeman on Cotenancy, sec. 346. The demurrer was properly overruled, if our view of the liability of tenants in common, assignees of the whole of the demised premises, though in unequal proportions, is correct, i. e., that they are jointly and severally liable on all cove- nants and obligations of the assignors, except perhaps the payment of rent. The possession of one of the tenants i the possession of all. There is no unity of interest, title, or time as in joint tenancy, but as to unity of possession they are identical. So far as enjoyment of possession goes, they are all equal, whatever may be the difference in shares held by each. If they are not jointly and severally liable, one tenant in common owning a small undivided interest might prevent the delivery of the property in its entirety, which the lessor is entitled to under his contract, with or without an express covenant therefor. We see no hardship in this rule, for the June, 1887.] COBUKN v. GOODALL. 79 assignees in possession, upon authority and in reason, stand in the shoes of the lessee; and so long as they occupy such relation to the lessor and his property, they are bound by the terms of the contract with the lessee and the obligations im- plied therefrom by law. While one of the tenants in common remains, the unity of possession is undivided; and as to those at least who continue in possession by themselves or by agents, the unity of obligation flows from unity of possession. There is nothing in the judgment which will prevent the four defendants against whom it was entered from enforcing contribution from Fake and the representatives of O'Farrell, if the right to contribute exist. The evidence is sufficient, we think, to sustain the finding that the defendants continued in possession of the five-acre tract from the expiration of the lease to the time this action was commenced. This tract or parcel, as described by the court in its findings, is " commonly known as Pigeon Point shipping point, and used for the purpose of handling and shipping freight, and lying above and bounded on one side by ordinary high- water mark." As between these defendants and this plaintiff, the grant of the wharf franchise by the board of supervisors to Templeton and Moore in 1870 is im- material. It was the duty of the defendants to deliver to plaintiff the possession of the five-acre tract. We think there was evidence sufficient to warrant the court below in finding that Ames did not deprive the defendants of possession. There was evidence tending to show that defendants were using the name of Ames as a disguise for their own posses- sion. Furthermore, there seems to be no longer any doubt that orders like that of the district judge made in the case referred to September 27, 1872, putting plaintiffs in the pos- session of the land during the pendency of the action for con- demnation, are void: Sanborn v. Belden, 51 Cal. 266; San Mateo Water Works v. Sharpstein, 50 Id. 284. With respect to the possession which it is claimed Coburn secured by virtue of the writs of restitution served in the case of Templeton and Ames v. Coburn and Clark, it is sufficient to say that the evi- dence is conflicting as to the fact of possession. The return of the officer upon the writ was only prima facie evidence of the fact stated: Pol. Code, sec. 4178. Plaintiff testified that he had no actual possession; that the moment the sheriff left "they just jumped right in and took possession again." It is claimed by appellant that the ejectment suit of Loren 80 COBUBN v. GOODALL. [Cal. Coburn, as plaintiff, v. Josiah P. Ames, Ellen Templeton, administratrix of the estate of Horace Templeton, Charles Goodall, Christopher Nelson, and George C. Perkins, defend- ants, commenced on the sixteenth day of January, 1885, and the findings and judgment therein, establishes an election by Coburn to treat Goodall and Nelson as trespassers, dissolves all their relations with him as assignees of said lease, and ad- judicates facts which are inconsistent with the claim of plain- tiff in this action. In that case all claim for damages, the findings therein show, was expressly withdrawn by plaintiff. If this had not been done, there is no question that the judg- ment would be conclusive on the question of damages, as it was made an issue in the case. "An adjudication is final and conclusive, not only as to the matter actually determined, but as to every other matter which the parties might have liti- gated, and have had decided as incident to or essentially con- nected with the subject-matter of the litigation, and every matter coming within the legitimate purview of the original action, both in respect to matters of claim and of defense": Freeman on Judgments, sec. 240. When, however, the record on its face shows that the issue was withdrawn from the con- sideration of the court, the presumption that it was adjudi- cated no longer applies. The right to recover possession, and the right to recover mesne profits, were not necessarily united in the action in ejectment. The right to join causes of action for both is a mere privilege granted by statute. That the record in that case is not an estoppel as to the time of ouster is equally clear: Yount v. Howell, 14 Cal. 465; for if the question of mesne profits may be considered out of the case by virtue of the finding of a withdrawal thereof, then there were but two other questions which could have been ma- terial in that action of ejectment, viz., right of entry by plaintiff, and wrongful possession of defendant, on the day suit was commenced. Appellant claims further that the bringing of the suit in ejectment was an election of a remedy inconsistent with this action, and concludes him from maintaining the latter. The rule stated in the syllabus, taken from Jones v. Carter, 15 Mees. & W. 718, is doubtless correct: " The service by lessor upon lessee of a declaration in ejectment for the demised premises, for a forfeiture, operates as a final election by the lessor to de- termine the term; and he cannot afterward (although there has not been any judgment in the ejectment) sue for rent due, June, 1887.] COBUBN v. GOOD ALL. 81 or covenants broken, after the service of the declaration." That was an action of covenant in a mining lease, in which breaches were alleged, the first for non-payment of rent, and others for violation of covenants requiring defendants, during the continuance of the demise, to keep six men searching for mineral for certain periods in each year, for keeping legible accounts of ore extracted, etc.; but the principal question re- lated to rent. The case before us, however, is not for rent, or for damages caused by a breach of covenant subsequent to the commencement of the ejectment suit. The plaintiff's right to recover both possession and damages arose immediately upon the failure of the defendants to deliver at the expiration of the lease, and in both actions the defendants are treated as wrongfully in possession, and charged with a continuous wrongful withholding from the time the covenant was broken down to the commencement of the action. There was evidence to support the finding of the court that Wensinger and Sudden continued in possession of the tract from the expiration of the lease to the commencement of the action. It is not for the appellate court to say that the court below ought to have believed certain witnesses rather than the one on whose testimony the finding is based. There are cir- cumstances tending to corroborate plaintiff's testimony and claim that Scotty held possession for and as agent of Wensin- ger and Sudden. Coburn failed to obtain possession under the written surrender executed by Sudden to him, and of course, if such failure was due in any degree to the act or neglect of Sudden, it was inoperative: Kower v. Gliick, 33 Cal. 406. It is claimed that the court erred in allowing, against the objection of defendants, evidence as to profits derived from ihe wharf and chute; that such was improper data for the as- sessment of damages, and it will be presumed that injury resulted from the admission of such evidence. The court svidently did not hold that the defendants were bound to de- liver the wharf, nor was the amount of profits derived from the wharf and chute taken as the measure of damage; otherwise a much larger sum would have been fixed by the court as the damage suffered by plaintiff. In determining the amount of damage sustained by plaintiff, we think that the question of profits derived from the wharf was a proper subject of inquiry, providing it was not taken as the measure of damage. If it be true that the defendants were wrong-doers in refus- ing to deliver possession to plaintiff, the question is, How Ax. BT. RIP., VOL. I.- 82 COBURN v. GOODALL. [Cal. much was Coburn damaged by the failure of the defendants to do what it was their duty to do? If it be assumed that those profits would necessarily have been less, if they had de- livered to him the portion above high water, retaining the part below themselves, it was easy to arrive at and deduct the dif- ference. All he had to do was to complete it, and the cost of completion was capable of demonstration. He was not allowed to recover as such the profits of the whole property. But in this, as in similar cases, it was proper and necessary to put the court in possession of all pertinent facts and circumstances from the consideration of all of which the ultimate fact of the quantum of damage was to be deduced. The court below allowed damages for the detention only of that part of the demised premises which it found was actually and exclusively detained, used, and possessed by the defend- ants from the expiration of the lease, October 1, 1872, to the commencement of this action, November 24, 1875; and whether we take into consideration the results flowing from the acts of defendants under the doctrine of encroachment contended for by plaintiff or not, ten thousand dollars, the principal amount of damages allowed, is reasonable and just. We think, however, that the court erred in allowing interest on the ten thousand dollars. Section 3287, Civil Code, reads as follows: " Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor, from paying the debt." But the damages were unliquidated and uncertain, and could only be made certain by proof and adjudication. Where the plaintiff's claim was an uncertain and unli- quidated demand, and the amount due could not be ascer- tained from the face of the contract, but was to be settled by process of law, this court has held that interest eo nomine cannot be allowed: Brady v. Wilcoxson, 44 Cal. 245. Nor could interest be allowed under section 3288, Civil Code, for interest under this section can only be allowed for the breach of an obligation not arising from contract, and then only in case of oppression, fraud, or malice. If plaintiff shows any case at all, it is for breach of an obligation which does arise from contract, and the court so finds. It is therefore ordered that the judgment be and it is Jane, 1887.] COBURN v. GOODALL. 83 hereby modified by striking therefrom the sum of $6,520, and as so modified the judgment shall stand. TEMPLE and McKiNSTBY, JJ., concurred. Hearing in bank denied. ASSIGNMENT or LEASE does not discharge the assignor from the obligation to pay rent, nor from any other obligation assumed by him in the lease; nor can he, by an assignment of a portion of the demised premises, compel his lessor to apportion the rent: Taylor on Landlord and Tenant, sec. 438; Bailey v. Wells, 76 Am. Dec. 233. WHILE LESSEE CANNOT RELIEVE HIMSELF from the express and implied covenants of the lease by an assignment, yet such assignment makes the as- signee answerable on such covenants if the lessor chooses to pursue him: State v. Martin, 52 Am. Rep. 167; Child* v. Clark, 49 Am. Dec. 164; Van Rensselaer v. Hays, 19 N. Y. 93; Stewart v. L. I. R. R. Co., 55 Am. Rep. 844; Van Rensselaer v. Bradley, 45 Am. Dec. 451. If the assignment is for a specific part of the demised premises, and the covenant is divisible, it will attach upon such "parcel pro tanto, and the assignee will be answerable for his proportion only of any charge upon the land which was a common bur- den upon the whole ": Taylor on Landlord and Tenant, sec. 443. But an assignment must be for the whole term in the land, or some part thereof. If the lessee assign for less than the whole term on the land, subject to the as- signment, this is a mere subleasing, and the lessor cannot recover rents from the sublessee. For remedies of lessor against assignees and sublessees, sea note to Fulton v. Stuart, 15 Am. Dec. 543-545. LIABILITY OF TENANTS IN COMMON, HOLDING AS ASSIGNEES OF LEASED PREMISES. The principal case maintains that where several persons become the assignees of a lease as tenants in common, "they are jointly and sever- ally liable on covenants to repair and to deliver up at the end of the term." As a consequence of this rule, the court affirmed a judgment against part only of such tenants in common, for the entire damages resulting from a re- fusal to surrender possession of the demised premises at the termination of the lease. While the opinion, in effect, states that there are authorities against as well as for the proposition, it adds that the weight of opinion is in favor of the rule adopted by the court. The rule as here maintained may be correct; but we have been unable to discover any authorities either affirm- ing or denying it. The relevancy of the cases cited by the court is not ap- parent. The decision upon this topic must be regarded as a pioneer. So far as the obligation to pay rent is concerned, it seems to be conceded that as- signees holding as tenants in common are not answerable for each other, but that each is liable for rent of the moiety held by him, and for that only: Bab- cock v. ScovilU, 66 111. 461 ; Fulton v. Stuart, 2 Ohio, 216; 15 Am. Dec. 542; Van RtnMclaer v. Jones, 2 Barb. 653. ASSIGNEE OF LEASE MAT TERMINATE HIS LIABILITY thereunder by as- signing his interest, and delivering possession to another, that the latter may be an insolvent or a beggar: Johnson v. Sherman, 76 Am. Dec. 481. An assignee is answerable only for rents accruing and covenants broken while he is assignee, and not after he has parted with hi* interest and possession: CliiltU v. Clark, 49 Id. 164, and note. INTEREST, WHEN ALLOWABLE: See note to Van Rensselaer v. Jetoett, 61 Am. Dec. 277-279; De Larallette v. Weiult, 31 Am. Rep. 494; Old Colony v. Milter, 28 I.I. 194; Wyman v. RMtuon, 40 Id. 360. 84 CONNOR v. STANLEY. [CaL CONNOE v. STANLEY. [72 CALIFORNIA. 656. J INSANITY. Belief in spiritualism does not of itself show insanity, unless it amounts to a monomania. BDRDEN or PROOF RESTS UPON ONE CLAIMING TO BE SPIRITUALISTIC MEDIUM, to show that a contract made by him with one having im- plicit belief in the existence of the powers claimed by such medium was free from undue influence. RELATION or PECULIAR TRUST AND CONFIDENCE EXISTS BETWEEN AS- SUMED SPIRITUALISTIC MEDIUM and a believer in his alleged powers, which raises the presumption that an advantage obtained by the former over the latter resulted from undue influence. ACTION to recover from the defendant, as administrator of the estate of William Jarvis, the value of certain bonds which Jarvis agreed to give to plaintiff in an antenuptial contract, made in anticipation of their marriage. The marriage was never celebrated. Judgment for the defendant. R. T. Devlin, William H. Beatty, and A. P. Catlin, for the appellant. A. C. Freeman, O. E. Bates, and 0. L. Johnson, for the respondent. By Court, TEMPLE, J. The contract on which this action is founded is set out in full on the former appeal (65 Cal. 184). It is there said to be valid as an antenuptial contract. The defendant set up as a defense that at the time the alleged contract was made his intestate was insane and incapable of entering into a contract, and that it was procured by the use of undue influence by the plaintiff. The court found that all the allegations of the complaint were true, except as to the capacity of Jarvis to contract, and that all the affirmative matters set up in the answer were true, except that plaintiff and P. B. Nagle did not, nor did either of them, coerce Jarvis otherwise than by taking advantage of his weak and unsound mind. The findings, therefore, plainly cover all the issues in the case, and the only question for our consideration is, whether there is any evidence which could justify the conclusion. Upon this proposition there can be no doubt. 1. There was evidence tending to prove insanity generally, and not merely that he was insane on the subject of spiritual- ism. J. Miller, an intimate acquaintance, thought he was in- eane. To the same effect is the testimony of Mrs. A. Walker, June, 1887.] CONNOR v. STANLEY. 85 J. W. Houston, S. B. Lusk, and Lee Stanley, and it is shown that plaintiff herself stated that she believed him insane. And then there is much testimony as to facts which would tend to show an unsound mind. 2. There is much testimony tending to prove that Jarvia was insane on the subject of spiritualism. That there is such evidence is not controverted, but counsel indulge in a long argument, and cite many authorities to the point, that a be- lief in spiritualism does not prove insanity. As *n abstract proposition, no doubt this is so. The law pronounces no one insane for mere religious belief, no matter how unreasonable it may appear to the judge. But this does not meet the case made. A belief in the doctrines maintained by the Metho- dists, Presbyterians, or the Catholics would not establish in- sanity. Still, one might be a monomaniac as to either form of religion; and so as to spiritualism. And that is precisely the effect of the great mass of testimony in this case. 3. There is much evidence tending to show undue influence. It is established that the relation between the parties was con- fidential, in consequence of her claim to power as a medium, through which she had great control over him. This being established, the burden was cast upon her of showing that there was no undue influence. The rule applies with peculiar force to the relation of one and his priest, confessor, clergy- man, or spiritual adviser, and certainly with no less force to the relation between one who is a firm believer in, not to say a monomaniac upon, the subject of spiritualism, and the medium in whom he has confidence, and upon whom he habitually relies. The cases upon the subject are numerous, but the law, so far as applicable here, is crystallized in the Civil Code. Sec- tion 2219 provides that every one who voluntarily assumes a relation of personal confidence with another is a trustee, and section 2235 raises the presumption that all transactions be- tween such persons by which the person trusted obtains an advantage are entered into under undue influence. It becomes important, then, to inquire whether the relation did exist. Jarvis was seventy-two years old, feeble both mentally and physically. He was a widower, his wife having died in Au- gust, 1881, a few months before the contract questioned here was entered into. He had lived for a great many years at Folsoni a quiet life, with no family except his wife. They had had one child, a daughter, who married the defendant, 86 CONNOR v. STANLEY. [Cal. and died twenty years ago, leaving two children. Jarvis had been a music teacher, and had accumulated some property. He was for many years a firm believer in spiritualism. The belief had grown upon him, until, in the opinion of the wit- nesses, it had become a monomania. His mind would drift to the subject upon all occasions. He relied upon supposed spiritual advice in his business transactions. When warned against trusting certain persons, he said: " It will be all right in the next world; they are spiritualists." He sold a farm for two thousand dollars, to be paid for in installments of two hundred dollars a year without interest. He bad been offered $250 a year rent. He said the spirits told him he must sell; that he was governed entirely by the spirits. The purchaser was a spiritualist. He invested several thousand dollars in mines, under the supposed advice of spirits. Most of this money was lost. He offered a lady fifteen hundred dollars to attend seances and become a medium. To another lady he offered to convey a piece of land if she would become a me- dium. He believed he could reform all the convicts if he could get them to read a spiritualistic paper. He said he had got the right idea of spiritualism, and was going to publish a work which would astonish the world. He admitted that he was controlled by mediums. One witness said he was a mental wreck from the time he lost his daughter, and there is much evidence that he became still worse after the death of his wife. His conduct was very strange during her last illness. He did not believe in giving her medicine or nourishment. The medium said she would die, and the spirits would keep her until then. He did not wish a doctor, as the spirits would do nothing if he had one. He objected to cooking being done in the house; the smell would keep the spirits out. The doors and windows must be left open so they could come in. He was angry when they gave her stimulants, because if she were to die intoxicated she would remain so in the spirit land. He knew of one man who was killed while drunk, and who was still drunk fifteen years after his death. In this condition of health, mental and physical, Jarvis met the plaintiff. She is said by her counsel to be an artist, who has a studio in San Francisco, a highly educated, refined, and accomplished lady. When Jarvis first made her acquaintance does not definitely appear, but it was evidently shortly after the death of his wife, when he went to consult her as a medium June, 1887.] CONNOR v. STANLEY. 87 to find out how much money he should give his granddaughter to use. In February, after Mrs. Jarvis's death, plain tiff was giving seances at Folsom. Jarvis had induced her to go there to be developed as a medium, and gave her fifty dollars per month to come. She remained on these terms for some three months, giving seances, which were attended by Jarvis, and to which he invited his friends. The evidence shows that he had the most exalted opinion of her powers as a medium, and that he was much under her control. He said himself that she had great influence over him when she was around. There is evi- dence that plaintiff herself said that she believed that Jarvis was crazy, and a medium could do anything in the world with him. We think this is sufficient to show that there was evidence upon which the court could find the existence of a relation of a peculiar ti ust and confidence between them, similar to that between a religious devotee and his spiritual adviser, and the proof of which would throw upon the plaintiff the burden of ehowing fair dealing. But the record contains evidence of undue influence and adverse pressure. Mrs. Walker testified: "Speaking of the time when the contract that is in suit here was executed, she said that they had had trouble and had words. She said that she wished him to settle something on her, and he asked her if she was afraid that he would not leave her anything, or would not leave her as well off as her other husband had left her, and she said that she locked the door and kept him in the room for about two hours, and that she put the key in her pocket They talked about the matter in my pres- ence, and they both told me that which I have stated. She said that they finally came to a settlement, and he agreed to settle something on her, and she opened the door and got a boy and sent him down to Nagle's office, and he came up and drew a draught of the contract that day, and the next day she told me that Jarvis came in and she asked him if he would have a chair, and she said he acted queerly. Then she said that she told him he would not have time to sit down if lie was going down to keep his word and sign that contract. He asked her what contract, and he said, ' I have made no contract.' .... She said that at that time he acted as if he was either drugged or crazy, and that he did not act as if he knew what be was about, and did not seem to know that he. had ever drawn up a contract She expressed her- 88 CONNOR v. STANLEY [Cal. self as believing that he was an old fool, and did not know what he was about. She said at that time she believed that he was crazy." There was evidence on the part of plaintiff contradicting some of this evidence, but this only creates a conflict. If we could consider the testimony, however, as a trial court, we could not say that the evidence does not sustain the finding. Judgment and order affirmed. McKmsTRY and PATERSON, JJ., concurred. CONTRACTS WITH SPIRITUALISTIC MEDIUMS. Conveyances and gifts to, contracts with, and devises in favor of persons believed by the grantor, donor, or testator to be spiritualistic mediums are attracting increased at- tention. In many instances, the claim is made that the grantor or donor was insane; and in proof of this, evidence of his belief in spiritualism and his placing himself under the guidance of professed mediums is generally offered and received. This evidence is commonly met with counter-evi- dence, showing his general soundness of mind, his perfect memory, his busi- ness sagacity, etc., and with the argument that as there are no means of testing the correctness of a man's religious belief, or his belief with respect to a future state, there is no evidence that his belief is mistaken, and certainly no proof that before entertaining and acting upon such belief he must have become demented. The principal case applies to the question well-settled general principles, by treating spiritualistic mediums just as other persons are treated who claim to exercise the functions of spiritual advisers, or who, from any other special relation, are implicitly trusted by the persons with whom they deal. The relations between spiritual teachers and their be- lievers is one which is always liable to lead to undue influence, and the law has for many centuries guarded against it by imposing limitations upon gifts to the church. One who is believed to have the power of communicating with the spirit land is more dangerous than a mere priest; for who could refuse to yield to teachings which he believed came from departed friends, who possessed the secrets and the wisdom of our future state ? We know of no instance in which a contract between a believer and a professed medium has been sustained. The leading case on this subject is that of Lyon v. Home, L. R. 6 Eq. 655. NoUidge v. Prince, 2 Giff. 246, and Thompson v. Hawks, 14 Fed. Rep. 902, are in the same line. All the cases show that it is incumbent on the person believed to possess supernatural powers to show affirmatively that the contract or gift was not the result of his undue in- fluence. This is the general rule with respect to wills or gifts made in favor of spiritual advisers, even when the testator or donor is conceded to be of sound mind: Norton v. Riley, 2 Eden, 286; Thompson v. Hefferman, 4 Dru. & War. 285; Marx v. McGlynn, 88 N. Y. 370. Any delusion or condition which controls the mind and dominates the will and understanding avoids a contract. It is not necessary to show that a man is an idiot or a maniac to avoid his contract: Jacox v. Jacox, 40 Mich. 473; Crcnather T. Rowlandson, 27 Cal. 381; Bond v. Bond, 7 Allen, 1; see also Hides v. Hides, 65 How. Pr. 17. BELIEF IN SPIRITUALISTIC COMMUNICATIONS OR REVELATIONS is not of itself evidence of insanity sufficient to avoid a will, unless it be shown June, 1887.] ALLISON v. THOMAS. 89 that the testator surrendered his own judgment and will, and implicitly followed the supposed communications and directions from the spirit land; Robinson v. Adams, 16 Am. Rep. 473; see also Brown v. Ward. 36 Id. 422, tud note. ALLISON v. THOMAS. [72 CALIFORNIA, 662.] OMISSION or INITIAL LETTER OF DEFENDANT'S MIDDLE NAME in proceed- ings against him in a justice's court is immaterial. SHERIFF'S RETURN OF SERVICE OF SUMMONS MAT BE AMENDED after judg- ment in a justice's court, so as to show jurisdiction over the defendant, though in the mean time the defendant has conveyed premises levied upon under the judgment by a quitclaim deed. QUITCLAIM DEED, or conveyance of all the grantor's right, title, and interest, vests in the purchaser only what the grantor himself could claim. The only exceptions to this rule are those founded upon the recording acts, or upon sales made under execution, ACTION to quiet title. Both parties claimed under John C. McDonald, who was eued in a justice's court by the name of John McDonell. He was served with summons and copy of complaint, but the sheriff's return did not show the service of the copy of complaint. Judgment by default was entered, and execution issued against John McDonald, under which a eale was made of the land in controversy to the defendant, to whom a certificate of purchase issued, and it was duly re- corded. McDonald then quitclaimed to plaintiff all his right, title, and interest in the same lands. Subsequently the sheriff, by permission of the justice, amended his return of the sum- mons to accord with the facts, and as amended, the return showed the service of the copy of the complaint as well as of the summons. When plaintiff received his conveyance, he had no knowledge that a copy of the complaint bad been served. Judgment for plaintiff, and defendant's motion for a new trial denied. Harris and Allen, for the appellants. Curtis and Otis, for the respondent. By Court, TEMPLE, J. The omission of the initial letter of the middle name of McDonald, in the proceedings in the jus- tice's court, is a matter of no consequence, and does not in any way affect the validity of those proceedings. The rule undoubtedly is, that the record in the justice's court must show affirmatively jurisdiction of the person, or 90 ALLISON v. THOMAS. [Cal. the judgment will not be valid. Here there was in fact juris- diction, but the return of the constable failed to show due service. After the judgment was entered, this record was amended, and as amended, did show jurisdiction. In the mean time, however, the land attached hud been sold. The judgment debtor had also conveyed to plaintiff all his right, title, and interest in the land. As against the judgment debtor there was no impropriety in allowing an amendment to the record according to the fact. The officer may always amend his return if there are no intervening rights which would be effected. And we think it plain there was no error in allowing it as to the purchaser. He purchased the right, title, and interest of the judgment debtor, and took subject to all equities and secret defects. We do not overlook the case of Graff v. Middleton, 43 Cal. 340, in which it was held that, under the twenty-sixth section of the recording act, then in force, a quitclaim deed received in good faith and for a valuable consideration would prevail over a prior unrecorded deed. That decision is made to turn upon the language of that statute defining the word " convey- ance." This ruling was followed in Frey v. Clifford, 44 Cal. 343, where the description of the estate conveyed was " all my right, title, and interest " of the grantor. Unless these cases are justified by the peculiar wording of the statute, they seem to be against the decisions elsewhere upon the subject. It has been uniformly held that a convey- ance of the right, title, and interest of the grantor vests in the purchaser only what the grantor himself could claim, and the covenants in such deed, if there were any, were limited to the estate described: Coe v. Persons Unknown, 43 Me. 432; Blanchard v. Brooks, 12 Pick. 47; Brown v. Jackson, 3 Wheat. 449; Adams v. Cuddy, 13 Pick. 460; 25 Am. Dec. 330; Allen v. Holton, 20 Pick. 458; Sweet v. Brown, 12 Met. 175; 45 Am. Dec. 243; Pike v. Galvin, 29 Me. 183. This construction is in accord with the obvious meaning of the language. The grantee in such a deed necessarily takes only what the grantor then had, and subject to all defects and equities which could then have been asserted against the grantor. To this rule this court has made an exception founded upon the recording act, and still another has been recognized in reference to sales made by the sheriff under execution. There the statute provides that the purchaser ac- quires all the right, title, and interest of the judgment debtor. June, 1887.] ALLISON v. THOMAS. 91 It has been held that such deed is good as against a prior un- recorded deed: Roberts v. Bourne, 23 Me. 165; 39 Am. Dec. 614. These are hoth exceptions to the general rule, founded upon special statutory provisions, and rather tend to confirm the rule than to overthrow it. Judgment reversed and cause remanded. McKiNSTBY and PATEBSON, JJ., concurred. AMENDMENT OF SHEKIFF'S RETURN may be made after judgment, to show that process was properly served on the defendant: Hefflin v. McMinn, 20 Am. Dec. 58. This question is fully discussed in note to Malone v. Samuel, 13 Id. 173-181. QUITCLAIM DEED, EJTECT OF: See Johnson v. Williams, post, p. 243, and not*. CASES nr THE SUPEEME COTJET OF ERRORS OF CONNECTICUT. PHELPS v. BATES. [54 CONNECTICUT, 1L] IK CONSTRUING WILL, TESTATOR'S PARTICULAR INTENT, SHOWN BY SINOLB PROVISION STANDING BY ITSELF, MUST YIELD to the general leading intent, as manifested in the whole instrument. WORD "OR" SHOULD BE CONSTRUED "AND" IN CLAUSE IN WILL, whereby the testator gave his son certain estate, with a gift over, if he should die "during minority or without issue"; and the estate would become inde- feasible in the son, at least as soon as he attained his majority. ESTATE MAT BE MADE TO DEPEND UPON ONE OP Two OR MORE ALTERNA- TIVE CONTINGENCIES, but the general rule is, that when an estate de- pends upon a double contingency, both must concur. AMICABLE suit for construction of will. H. C. Robinson, E. H. Hyde, Jr., and H. E. Taintor, for part of the defendants. /. P. Andrews and C. H. Briscoe, for the other defendants. By Court, CARPENTER, J. This is a suit for the construction of a will. The testator gave the bulk of his property to his son, then thirteen years old. The second section of the will reads as follows: "I give and bequeath to my only son, Allie Carlos Bates, all my estate, both real and personal, of every name, kind, or description, except what I hereafter donate in this will to the other legatees." Section 3 provides for his wife; sections 4 and 5 give legacies to two sisters; section 6 gives a legacy to a brother; section 7 provides for a step-spn, and makes an additional provision for his wife; sections 8 92 Apri], 1886 ] PHELPS v. BATES. 93 and 9 provide for two other persons outside of the family. The will then proceeds as follows: " In my extreme embarrassment in making provision for unforeseen events, or cases of death, I am at a loss what to do, but decide upon the following, viz.: In the event of the death of my son Allie C. during his minority, or without family or issue, the bank stock and real estate, or home farm (so called), and stock, and household goods, etc., to go to , and that she, Hannah S., shall share equally with my own family heirs in the division of all of the property which may be left or remain from my son Allie C., viz.: with Anson Bates's heirs, Albert Bates, Flora B. Metcalfs heirs, C. Laura Vandorn, Alfred Bates, and Mindwell D. Smith, or the heirs of each (if any) that maybe deceased at that time, seven equal shares in all. I do hereby direct the legacies in this will to be due six months after my decease. To be more explicit: I wish and design to give to my wife, Hannah S., the use and benefit of my home farm during her life, with the stock, tools, household goods, and implements on and belonging to the same, during her life, in the event of the demise of my son, Allie C., during his minority, or without issue or heir, before her decease (Hannah S.), and she to share equally in fee-simple with my six family heirs in all of the rest of my property given in this will to my son Allie C." Under this will two questions arise: 1. What estate does the son take? and 2. What estate does the widow take? In be- half of the son it is claimed that he takes an absolute estate, or at least an estate that becomes absolute on his attaining his majority. In behalf of the " family heirs," it is contended that he takes either a life estate or a defeasible fee; and that the heirs take a remainder, or a gift by way of an executory devise. In construing this will we must bear in mind that the gen- eral leading intent as therein manifested is evidently to give a very large portion of the estate to the son. He is first pro- vided for. The second section gives an estate in fee-simple: White v. White, 52 Conn. 518. That ought not to be cut down to a less estate, unless we find a clear intention that it be done in the subsequent parts of the will. We think it is very clear that the testator did not intend to give his son a mere life estate. There are in this will no less than five distinct life estates. In every instance such an es- tate is clearly expressed. The testator, or whoever draughted 94 PHELPS v. BATES. [Conn. the will, knew what language to use in order to create a life estate. When that was his intention it was not left to infer- ence from words of doubtful construction. A defeasible fee, such as is here contended for, in the minds of most men could not be distinguished from a life estate. It is in effect only an estate for life, although it may not technically be termed a life estate. The presumption is, that if the testator had in- tended a defeasible fee he would have created a life estate, and thus have disposed of the remainder as he did in other instances. Instead of that he used appropriate language to give a fee. The first nine sections dispose of all his property. His first and leading intention, as well as nearly all his minor and subordinate ones, are found in them. If they stood alone, no such question as now arises could have been made. What then did the testator intend by that portion of the will follow- ing the ninth section? That seems to have been suggested to him by contemplating the possibility of his son's early death. That that might occur before the will could take effect was evidently in his thoughts, as he assumes that his property in that event would go to his own heirs, and provides that his wife shall be admitted upon the same footing with his brothers and sisters. That assumption is inconsistent with the vesting of the property in the son by force of the will; for in that case the property would go to the heirs of his son instead of his own heirs. Hence there is some reason for construing this part of the will as meaning the death of his son during his own life. But if for any reason that is inadmissible, then we think it must mean the death of his son during his minority and without heirs or issue. Evidently he had in mind his death during the life of the mother, for the will makes her as one of the heirs. In the seventh section the death of the son during minority is spoken of by itself, and that event is pro- vided for so far as the home farm is concerned. But in the portion following the ninth section, where only the expressions, " or without family or issue," or " without issue or heir," are found, they are coupled with the words, " during his mi- nority." On behalf of the heirs it is contended that the prominent and controlling intention of the testator was to prevent his property from going out of his own family. But we think that intention was contingent and secondary, while his pri- mary and more important intention was to provide liberally April, 1886.] PHELPS v. BATES. 95 for his son. All his property is disposed of before these ex- pressions are reached. They are used in making some change in the disposition of his property in a given possible contin- gency. Manifestly he regarded the provision for heirs as of minor importance. Until now they are not named, and here they are not named as devisees or legatees, but as heirs. There is no direct express gift to them. It is only by an im- plication from an assumption that the property, in case it becomes intestate, will go to them as his heirs, that it can be said that they are legatees at all. The leading thought in his mind seems to have been to make an additional provision for his wife, rather than make provision for his brothers and sisters; and this he did by making her as one of them. In- cidentally and by implication the provision is for their bene- fit. So far as that was intended, it was a particular intent, the general intent being in favor of the wife. The former cannot prevail over the latter; much less over the general and all-important intent to give his property to his son. Moreover, this was the matter which caused him " extreme embarrassment," concerning which he was " at a loss what to do." With doubt and hesitation, he finally decided " upon the following," etc. To call the part of the will thus produced the important part, containing the general intent, and construe it as prevailing over the intent to provide for his only son, a matter concerning which he was not at a loss, did not hesitate, but was clear and decided, would be absurd. We shall not be justified in inferring from a provision of that character an intention to cut down an estate in fee to a life estate, or which is, in effect, nearly the same thing, to a defeasible fee. The consequences of such a construction would be serious. The eon would be left with nothing that he could call his own and enjoy, except the income; for it will be observed that every- thing given to the son is subject to this provision. That the testator intended such a result will not be presumed; and it ought not to be produced by construction, if the will will ad- mit of any other rational interpretation. To avoid it, and at the same time give effect to the major intent apparent through- out the whole will to make his son his principal beneficiary, we feel justified in giving to the word "or" the meaning of "and"; so that the will in meaning will read "during his minority and without issue." Such a change gives effect to the intent of the testator, and hence is within the authorities on that subject. 96 PHELPS t;. BATES. [Conn. Again, suppose the son had died while under age, but leav- ing issue. Then, if the words are to be taken literally and disjunctively, the issue would not have taken, but the estate would have gone to collateral heirs. Manifestly that would be contrary to the intention of the testator. To effectuate that intention, it would be necessary that the words should be taken in a conjunctive sense. And that would require both contingencies to concur in order to give effect to the limitation over. The general rule is, that when an estate depends upon a double contingency, both must concur. Doubtless an estate may be made to depend upon one of two or more alternative contingencies, but the supposition we have made shows that such was not the meaning of the testator in this case. The case of Williams v. Hubbard, 2 Root, 191, is identical with this case so far as this question is concerned. An estate was given to a grandson, with this provision: " In case the grandson dies before he arrives at the age of twenty-one years, or before he has any heirs of his body, then the estate given to him shall go to the said daughters." It was held that the estate vested in the grandson on arriving at the age of twenty- one years, though he died without heirs of his body. The court say: " The dying without heirs is to be understood to re- late to the time before he arrives at the age of twenty-one years." If the testator intended death during his own life, or death during minority, then the estate becomes indefeasible in the eon, at least as soon as he attains his majority. The gift to the wife in the third section of the will is clear, and requires no construction. The provision for her benefit in the seventh section is contingent upon the son's dying dur- ing minority, and as that event can now never happen, we have no occasion to consider what interest she takes under that section. The provision found in the concluding portion of the will is inoperative, for the reason given above. The superior court is advised to render judgment in accord- ance with these views. WHEBE LANGUAGE OF TESTATOR IN HIS WILL is PLAIN AND UNAMBIGUOUS, SUCH LANGUAGE MUST GOVERN: Warner v. Miltenberger, 83 Am. Dec. 573; but the testator's intention will prevail over words in his will; and it is the duty of all courts to give effect to such intention: Eatkerly v. Eatherly, 78 Id. 499, and note 505; Bell County v. Alexander, 73 Id. 268, and casea in note 276; which is to be gathered from the whole instrument: German v. German, Sept. 1886.] HOLMAN v. CONTINENTAL LIFE INS. Co. 97 67 Id. 451 ; but the intent of the testator does not control where it would vio- late law: Brattle Square Church v. Grant, 63 Id. 725. CHANGING ONE WORD TO ANOTHER IN CONSTRUING WILL: See Chode v. Goode, 66 Am. Dec. 635, note; construction of "and" for "or," or vice versa: Janney v. Sprigg, 48 Id. 557, and note 565. CONSTRUCTION OF WILL "DYING WITHOUT ISSUE": Matter qf New York etc. R. R. Co., 59 Am. Rep. 478; Quackenboa v. Kingsfawi, 55 Id. 771, and ex- tended note 774. HOLMAN v. CONTINENTAL LIFE INS. Co. [64 CONNECTICUT, 195.1 Las INSURANCE FORFEITURE OF PAID-UP POLICY. A policy of life in- surance provided that it should become void on failure to pay any annual premium, or interest annually in advance on any outstanding premium notes; but that, after the payment of two or more annual premiums, on default in the payment of any subsequent premium, the company would convert the policy into a "paid-up " one for as many tenth parts of the sum originally insured as there had been complete annual payments when default was made, provided application was made for such conversion within one year after default. The insured paid two annual premiums, a portion in cash, and the balance in premium notes still outstanding, made default in the payment of the next premium, and applied for a 41 paid-up " policy. Thereupon the company indorsed upon the policy that it was recognized as binding for two tenths thereof, " subject to the terms and conditions expressed in the policy." Thereafter the insured paid the interest on the outstanding premium notes, annually, in ad- vance, for two years, and then ceased to pay the same. In an action to recover the amount due on Jthe policy, field, that the company's indorse- ment upon the policy was equivalent to a " paid-up " policy, and that the failure to pay interest on the outstanding premium notes worked a forfeiture thereof. "PAID-UP" POLICY OF LIFE INSURANCE MAY BE FORFEITED BY NON -PAY- MINT of interest on premium notes, given for premiums accruing while the original policy remained in force. NAMINO POLICY OF INSURANCE NON-FORFEITABLK does not render inappli- cable the rule that a writing must be construed by its terms, and if by these it is forfeitable, a defense showing the existence of facts, which by these terms create a forfeiture, must be sustained. THE plaintiff was the beneficiary in a policy of insurance upon the life of W. W. Holman. The annual premiums were paid partly in cash and partly in premium notes, the interest of which was payable annually in advance. After making two annual payments of the portions of the premium due in cash, he made default, and applied for and received a paid-up policy for two hundred dollars, with conditions as shown in the opinion. The premium notes for the first two years re- mained outstanding. Interest was paid on them until 1876, An. ST. KBP., VOL. L 7 98 HOLMAN v. CONTINENTAL LIFE INS. Co. [Conn. when default was made in paying such interest, and the ques- tion was, whether this default forfeited the policy. H. B. Freeman, for the plaintiff. T. M. Maltbie, for the defendant. By Court, LOOMIS, J. The complaint in this case seeks to recover the amount due under a so-called " paid-up " policy of insurance on the life of William W. Holman, for the bene- fit of his wife. The demurrer to the defendant's answer raises the question whether the defense therein set forth is sufficient in law to prevent a recovery by the plaintiff, and this depends entirely upon the contract of the parties. By the terms of the contract as originally made, the defendant was to receive an annual premium of $108.72 during the con- tinuance of the policy for the term of ten years, payable, as appears from the margin, partly in cash and partly by note. At the end of the term, or upon the previous death of the in- sured, the defendant was to pay one thousand dollars, " de- ducting therefrom all indebtedness to the said company on account of this policy, if any, then existing," subject to sundry express conditions and agreements mentioned in the policy, the third and fourth of which only are involved in this case. These are as follows: " 3. If the said assured shall not pay the said annual pre- miums on or before noon of the several days hereinbefore men- tioned for the payment of the same,* and the interest annually in advance on any outstanding premium notes which may be given for any portion thereof, or shall not pay, at maturity, any notes or obligations given for the cash portion of any premium or part thereof, then, and in every such case, this policy shall cease and determine, and said company shall not be liable for the payment of the sum insured, or any part thereof, except as hereinafter provided. "4. If, after the receipt by the company of two or more annual premiums upon this policy, default shall be made in the payment of any subsequent premium when due, then, notwithstanding such default, this company will convert this policy into a 'paid-up' policy for as many tenth parts of the sum originally insured as there shall have been complete annual premiums paid when such default shall be made; provided, that this policy shall be transmitted to and received by this company, and application made for such conversion within one year after such default." Sept. 1886.] HOLMAN v. CONTINENTAL LIFE INS. Co. 99 The defendant's answer, after admitting the issuing of the policy, its terms and demand and refusal to pay, as alleged in the complaint, further alleged that, " 2. On the first day of April, 1874, the plaintiff had paid to the defendant in cash a portion of two annual premiums, and had given to the defendant premium notes for the remain- ing portion of said premiums, which notes were then and are now outstanding and unpaid. " 3. Thereafter the plaintiff made default in the payment of premiums, and transmitted said policy to the defendant, and with his wife, Rebecca J. Holman, applied to the defend- ant to adjust the insurance under said policy, according to the stipulations thereof, by reducing the amount thereof to two hundred dollars; and in said application agreed to pay the defendant, annually, in advance, the interest on all outstand- ing notes given in part payment of annual premiums. "4. Thereupon the defendant made the following indorse- ment upon said policy of insurance: 'This policy having lapsed after two annual payments is hereby recognized as binding upon the company for two tenths thereof, or two hun- dred dollars, subject to the terms and conditions expressed in this policy and in the quitclaim to this company, bearing even date with this entry ' ; and returned said policy to the plaintiff, who accepted the same. " 5. Thereafter the plaintiff paid the interest on said out- standing premium notes, annually, in advance, until the year 1876, when he ceased to pay the same, and has not since paid the same. " 6. Said policy provided that if the assured should not pay the interest annually in advance, on any outstanding pre- mium notes given for any portion of the annual premiums on eaid policy, then said policy should cease and determine, and said company should not be liable for the payment of the sum insured or any part thereof. " 7. By reason of the failure and neglect of the plaintiff to pay the interest annually, in advance, on said outstanding premium notes in the year 1876 and thereafter, said policy of insurance has ceased and determined, and the defendant is not liable for the payment of the sum insured, or any part thereof." The plaintiff's reply was as follows: "The plaintiff demurs to the answer of the defendant, as the Tacts therein stated are insufficient in the law, because the paia-up policy upon which 100 HOLMAN v. CONTINENTAL LIFE INS. Co. [Conn. complaint is brought was non-forfeiting by its terms, and con- tained no provision that the failure to pay interest on the out- standing premium notes should work a forfeiture of said paid-up policy, and the same is nowhere averred in said answer." The special ground of this demurrer presents the precise question involved in the case, namely: Does the paid-up policy contain a provision that the failure to pay interest on the outstanding premium notes shall work a forfeiture of the policy? This question is different from the one considerably dis- cussed in other jurisdictions, namely: What will entitle the insured to a paid-up policy, and what provisions as to for- feiture should it contain? The parties have settled these questions themselves by giving and accepting the reduced insurance; and if the policy thus accepted contains a pro- vision whereby the failure to pay interest will make it void, then the plaintiff by his pleadings impliedly admits that he has no case, even though he would have been entitled to a different policy under the original contract. The new contract, whereby the insurance was reduced to two hundred dollars, states that the company recognize the policy binding for that sum, " subject to the terms and con- ditions expressed in this policy and in the quitclaim to this company bearing even date with this entry." This, in effect, is the same thing as a new policy, containing the terms and conditions of the old one as far as applicable. Now, among these conditions is the clear stipulation that " if the assured shall not pay the interest annually, in advance, on any out- standing premium notes, this policy shall cease and deter- mine." In what manner did this provision become eliminated from the paid-up policy? It cannot be claimed to be inapplicable, because there is a subsisting obligation to pay this interest annually in advance, recognized not only in the original policy but in the quitclaim, whereby the plaintiff and his wife, when they applied for the reduced insurance, made a fresh promise and agreement to pay this interest, and this quitclaim is referred to and made part of the new contract, and the promise on the part of the company is made subject to it as a condition. But a specious argument always urged against this view by counsel for the insured and sometimes sanctioned by courts is founded upon what is called the absurd paradox of forfeiting Sept. 1886.] HOLMAN v. CONTINENTAL LIFE INS. Co. 101 a non-forfei table policy. The name " non-forfeiting " has un- doubtedly been sometimes used to mislead applicants for in- surance, and some of the cases refer to the fact that agents for insurance companies have made declarations and issued cir- culars to the effect that, after the payment of two annual pre- miums, the policy would be binding on the company without any further attention on the part of the holder. But no such fact appears in this case, and upon the admit- ted facts it is certain that the insured was not misled, for he voluntarily offered to pay and did actually pay interest annu- ally in advance on the paid-up policy until the year 1876. It is manifest that both parties at the time, and for several years subsequently, construed the contract alike. There was no trap, therefore, into which the plaintiff was unwarily led. But courts need not be misled by mere appeals to preju- dice. The contract is not to be construed by its mere label, by its written terms, and upon referring to these we see once that the policy is non-forfeitable only to a very limited No one has ever claimed that it extends beyond the pay- of an annual premium and interest, and even in these < ^ respects it is non-forfeitable only at the option of the holder, V who must transmit the policy to the company and make ap- g plication for its conversion into a paid-up policy within one *-* year after default. But a glance at the policy will show that -. even after the conversion the insured can have no security C^ against forfeiture except by observing the conditions. If with- out the consent of the company he travels outside of the pre- scribed limits mentioned, if he engages in certain specified hazardous occupations, if he becomes intemperate or is ad- dicted to vice of any kind to the extent of permanent impair- ment of his health, if he is convicted of felony, if he dies by his own voluntary act or in consequence of a duel or under the sentence of the law, the paid-up, non-forfeitable policy could not for a moment avail, but .would thereby become null and void. Any argument, therefore, founded merely upon the use of the term " non-forfeitable " is of little weight. We must, as in all other cases, construe the contract by the language used in it. In this case the question is confined to the language of the saving clause, which is the fourth. Does that save the in- sured from the consequences of a failure to pay interest, the 5arae ui it does in the case of failure to pay future annual 102 HOLMAN v. CONTINENTAL LIFE INS. Co. [Conn. premiums? The third clause, which it is indispensable to consider in this connection, clearly specifies two distinct de- faults, either of which will forfeit the policy: 1. Failure to pay the annual premiums when due; and 2. Failure to pay in- terest in advance on outstanding premium notes. So far the meaning cannot be mistaken. Now how does the saving clause which follows affect the question ? It only relieves the insured (after the payment of -two or more annual premiums) from one of those defaults, "the payment of any subsequent pre- mium when due." Not a word is said about interest. The saving clause, therefore, is not co-extensive in its operation with the preceding forfeiture clause, as it should be to justify the plaintiff's construction. It is not easy to conceive why the parties, having clearly in mind the distinction between the two causes of forfeiture mentioned in the third clause, should in the next, in terms, confine the relief to one only, if they intended to place both on the same ground. To accept the plaintiff's view would be for the court virtually to insert what the parties omitted. If it be suggested that the distinction between interest and premium note was unnecessary, the an- swer is twofold. In the first place, the parties have made such a distinction, and presumably had it in mind all through; and in the second place, the distinction is well founded, for the interest contract is not a mere incident of the note, but distinct from it; it is payable in advance at the beginning of each year, without reference to the time when the notes become due. And herein is a distinction of some importance between the case at bar and some of the cases from other jurisdictions, where the premium note was payable at a future day with in- terest without separate contract as to the latter. In such case the interest, being a mere incident of the note, could not be separately recovered, and there would be some reason for hold- ing that if the note was to be paid only by deducting it from the policy upon its final adjustment, the interest also must fol- low the same course, for it must follow the note. But is the distinction, which we have assumed that the policy in question makes, reasonable and just? The require- ment to pay interest annually is indispensable to the success of this system of insurance where credit is given. The annual premium for the risk here was $108.72. The policy was a par- ticipating one, under which the insured was to receive his fair proportion of dividends. The company could not treat this matter as entirely isolated from all other policies. Some Sept. 1886.] HOLMAN v. CONTINENTAL LIFE INS. Co. 103 stable basis must be found upon which an intelligent estimate could be made of the company's ability to pay losses, ex- penses, and dividends. Such basis can only be found in the assumption that the company will certainly receive the an- nual premium in money, or a fair equivalent in the way of annual interest. The reception of the note, payable at a future day, cannot possibly be the same thing as payment in money, unless interest is paid on the credit annually. The relief from forfeiture, provided for in the policy, is based upon the equitable idea that the reduced policy represents the pro- portionate amount of insurance fully paid for upon a cash basis. If the insured wishes to be secure from forfeiture, he may pay the annual premiums in money. If he insists on a credit, he may take a reduced policy, which exempts him from the pay- ment of future annual premiums; but he is still subject to the rigorous condition to pay interest, or lose the benefit of his policy. In support of these views, we cite sundry cases from other jurisdictions. The case of Knickerbocker Life Ins. Co. v. Dietz, 52 Md. 16, decided in April, 1879, is very strong for the defendant. The original policy, in substance, was the same in every respect as the one under consideration. It was dated May 5, 1868, and under it the insured paid premiums in cash and notes up to May 5, 1873, when he surrendered the policy, and obtained a new one for five tenths of the amount originally insured. The second policy stated that it was issued in consideration of the surrender of the previous one, and accepted by the insured upon the express condition and agreement that if the interest should not be paid on or before the day named, the policy should be null and void. The interest was not paid on the 5th of May, 1874, and the policy was canceled by the company. Soon after this the insured tendered the interest due; but the company refused to receive it. The questions arose under a bill in equity, alleging that no interest was required to be paid May 5th; that the clause that made the new policy void on non-payment of interest was in- consistent with the true meaning of the contract; that the stipulation as to forfeiture was in the nature of a penalty, against which a court of equity should relieve, and praying for such construction of the contract, and for a decree for the payment of the amount of the policy less the notes and inter- est. It will be seen that the position of the case before a court 104 HOLMAN v. CONTINENTAL LIFE INS. Co. [Conn. of equity was more favorable for the claimant than that of the present case; but the court held there was no relief. Grason, J., in delivering the opinion of the court, said: "The theory on which the amount of tho premium is fixed .... is that, assuming that a man of a given age has a prospect of living a certain number of years, as shown by experience and observa- tion, the premium charged is such a sum as, invested annually at a certain rate of interest and compounded, will, at the ex- piration of that time, amount to enough to pay the policy and cover the expense of the company. To accomplish this re- sult, the premium must be punctually paid and invested, and the interest reinvested at the assumed rate. Otherwise, the ability of the company to pay the policy, instead of being a matter of reasonable certainty, becomes a mere matter of chance, the business of life insurance ceases to have any scientific or accurate basis, and a policy of insurance becomes a mere wager on the life of its holder. The prompt payment of interest on premium notes is as necessary to the successful working of an insurance company, as well as to the security of the insured, as are the payment of the premium notes themselves. If one policy-holder can fail to pay his interest, any number of them may do the same, and the ruin of the company would be the inevitable result. The time for the payment of interest on premium notes is of the essence of con- tracts of insurance." The case of Knickerbocker Ins. Co. v. Harlan, 56 Miss. 512, decided in January, 1879, was an action on a paid-up policy, which recited that it was issued in consideration of the sur- render of the original policy (the provisions of which. were similar to those in the case at bar), and which stipulated that if the interest on the premium note was not paid before a specified day, the policy should be null and void. The com- pany pleaded the forfeiture of the paid-up policy by reason of the non-payment of interest; to which plea the plaintiff de- murred, precisely as in the case at bar. The court below sus- tained the demurrer upon precisely the same arguments as are urged in behalf of the plaintiff in the present case, but the judgment was reversed in the supreme court, mainly upon the ground that, under a proper construction of the new policy, the right to recover the sum assured by it was to be earned only by the prompt payment in future of the interest on the premium note, and that it made no difference that the amount of the note was already due the company on the old policy. Sept. 1886.] HOLMAN v. CONTINENTAL LIFE INS. Co. 105 In Alabama Gold Life Ins. Co. v. Thomas, 74 Ala. 578, de- cided in December, 1883, the action was upon a paid-up policy, as contained in an indorsement upon the original policy, the terms of which were as follows: "In consideration of the pay- ment on the within policy of four annual premiums, less note for $169.20, given for balance due on premium loans to No- vember 11, 1872, said policy is entitled at maturity to a paid- up value of four tenths of the sum insured, subject to deducting note above described, interest upon which is payable annually in advance." It was held that the indorsement was to be con- strued, together with the original policy, as constituting one contract, and that thereby the parties made a clear agreement that the policy should be void in the event of the failure to pay interest. It was held, as in the Maryland case before cited, that " the payment of interest was of the essence of the contract; that the calculations of insurance actuaries fixing the rates of insurance are based on the theory of prompt pay- ment, so as to afford opportunity for such reinvestment as to reap the fruits of compound interest upon the company's mon- eyed capital." Insurance Co. v. Robinson, 40 Ohio St. 270, was an action based on the refusal of the company to grant an application for a paid-up policy pursuant to the provisions of a policy con- taining provisions identical with the one at bar, so that this case presents the question as to the rights of the parties under a non-forfeiting policy like the one in this case prior to the in- dorsement made upon it. The default on the part of the insured was simply as to interest on the premium notes. He had paid previously four annual premiums, part in cash and part by note, in the manner provided. Granger, C. J., in de- livering the opinion of the court, said: "The third condition before us is plain. It clearly states that upon a failure to pay the interest in advance, the policy should be void. The fifth adds, that in such case, all payments thereon, and all divi- dends and credits accruing therefrom, shall be forfeited to the company. But the insured claims that the fourth condition modifies the third. This fourth condition makes no reference to interest, either expressly or by reasonable implication. Having failed to pay the interest due on four notes, he in effect was in default for a part of each of four annual pre- miums, besides the one that became due on March 7, 1876. This interest formed no part of the annual premium due on that day. Its punctual payment was necessary to complete 1U6 HOLMAN v. CONTINENTAL LIFE INS. Co. [Conn. the payment of the premiums due in the four preceding years. .... We are unwilling to so construe a stipulation worded so plainly, and with such evident care, as to mako of no moment a default which the third condition declared of enough impor- tance to destroy the life of the policy." In Attorney-General v. North American Life Ins. Co., 82 N. Y. 172, decided in September, 1880, the question arose in review- ing the decision of a referee appointed to adjust the claims against an insolvent life insurance company in the hands of a receiver. It appeared that in lieu of certain policies upon which notes had been given for part payment of annual pre- miums, paid-up policies had been issued containing a pro- vision that, in case the interest should not be paid as agreed, the policies should become void. Where there was such de- fault in the payment of interest, the referee rejected the claims, and the court of appeals unanimously sustained the ruling. Earl, J., in delivering the opinion, in answer to the claim that the condition relied upon by the insurance company was unconscionable, and that a case of forfeiture was presented against which a court of equity should relieve, said, among other things: " It was a contract between the par- ties that these policies should be carried only so long as inter- est should be promptly paid upon the notes; and if not paid, that the company should cease to be liable The pro- vision is not an unusual one Here was an insurance company doing business throughout the country. Prompt payment of its obligations was deemed important to it. If premiums to such an insurance company are not promptly paid, it may be agreed that the policy may be forfeited. If notes be taken for premiums, payable at a definite time, the policy may be avoided for non-payment. If notes be taken which are to run to the maturity of the policy and then be adjusted, the policy may be avoided for non-payment of the in- terest. All these cases stand upon the same footing, and a court of equity can, upon principle, no more relieve against a forfeiture in one of them than in either of the others. The case of the claimants may be treated as if the interest repre- sented premiums to be paid during the running of the poli- cies There is much authority sustaining the decision of the referee: Anderson v. St. Louis Mut. Life Ins. Co., 5 Bigelow's Ins. Cas. 527; Martin v. jEtna Life Ins. Co., 5 Id. 514; Patch v. Phcenix Mut. Life Ins. Co., 44 Vt. 481; Knickerbocker Life Ins. Co. v. Harlan, 8 Ins. Law J. 349; Nettleton v. St. Louis Life Ins. Sept. 1886.] HOLMAN v. CONTINENTAL LIFE INS. Co. 107 Co., 6 Id. 426; Smith v. St. Louis Mut. Life Ins. Co., 2 Tenn. Ch. 742." Patch and Wife v. Phoenix Mut. Life Ins. Co., 44 Vt. 481, de- cided in 1872, was an action of assuwpsit upon a paid-up policy issued in exchange for an endowment policy upon which two annual premiums had been paid, partly by two notes. The exchange was made pursuant to a memorandum on the back of the first policy, to the effect that the company would purchase any of its policies upon which two annual premiums had been paid, and issue a new policy for the equi- table value of the policy surrendered, "thus making all policies non-forfeitable." On the margin of the paid-up policy was this statement: " This policy is conditional on the interest on two notes given in part payment for two premiums paid on No. 10,603, being paid in advance." Pierpont, C. J., in de- livering the opinion, among other things, said : " The interest upon the notes, by their terms, is to be paid annually, and it is such interest that the memorandum refers to and requires to be paid in advance. Any other construction would be a manifest violation of the meaning and intent of the parties to this contract. The defendant having taken the notes in the place of the money, it could not reasonably be expected that the defendant would do less than to secure the payment of the interest thereon, by making the new policy dependent upon its payment. Treating the memorandum as a part of the policy, and the whole to be considered the same as though it was included in the body of the instrument, the interest upon the notes becomes practically a premium upon the pol- icy, payable annually in advance; and on failure to pay the same, the company ceases to be liable, and the policy is for- feited." Russum v. St. Louis Mut. Life Ins. Co., 1 Mo. App. 228, de- cided February 28, 1876, was an action on the original policy, conditioned, 1. That default in the payment of future annual premiums should not avoid, but it should be proportionately reduced; 2. That if the insured should fail to pay annually in advance the interest on premium notes the policy should be void. Gant, P. J., in delivering the opinion of the court, said: " If the insured had paid the interest on his note on Decem- ber 2, 1871, he would, we think, have been entitled to recover two tenths of the sum insured, deducting the unpaid note. Having failed to make that payment, the policy is forfeited and the company discharged. We think it impossible to 108 HOLMAN r. CONTINENTAL LIFE INS. Co. [Conn. escape this conclusion It is urged that the two pro- visions of this policy are inconsistent and contradictory, and that the one which leads to a forfeiture must be rejected; but the clauses are not inconsistent All that is needed is for the insured to bring himself within the terms of both. The first is intended to save a forfeiture, which generally would be incurred by the failure to pay the annual premium. To this extent it is a privilege or advantage to the assured. The second proviso insists upon rigorous conditions, in re- spect of what? Only of so much of any unpaid premium as the assured, instead of paying in cash, takes the indulgence of only paying interest on at six per cent. If he does not wish to incur the hazard of a forfeiture on account of this part of the premium, his remedy is easy; he can presently pay his note for the premium, and without more, he has a paid-up, non-forfeitable policy for a fixed portion of the sum contem- plated by the instrument when originally issued. If he wishes instead of this to take the chances of gain, he must at the same time incur the hazard of loss, and cannot com- plain if he be held to the terms of the contract he has deliber- ately made." Other pertinent cases might be cited, but these will suffice to show that the views of the majority of this court have a very strong support in other jurisdictions; and while we con- cede that the opposing views of the plaintiff are sustained by some courts entitled to very great respect, we think the weight of judicial authority is the other way. The first case cited in behalf of the plaintiff, to which we will refer, is Fithian v. North Western Life Ins. Co., 4 Mo. App. 386, decided October 23, 1877, by the same court that decided Russum v. St. Louis Mut. Fire Ins. Co., supra, the year pre- vious. It was held that non-payment of interest did not forfeit the policy in that case, and some of the reasoning at first blush seems different from that in the first case; but Lewis, J., who delivered the opinion, concurred in the previous one, and no allusion whatever is made to the other case. It would eeem improbable that it was the intention of the court to overrule the first case, or that it was considered inconsistent with the last one, and upon examination of the policy we see good ground for a distinction. The first stipulation was, that in case of default the company would pay as many tenths of the original sum as there should have been complete annual premiums paid ; then followed the provision, " If said pre- Sept. 1886.] HOLM AN v. CONTINENTAL LIFE INS. Co. 109 miums, or the interest upon any note given for premiums, shall not be paid on, etc., .... then in every such case the company shall not be liable for the payment of the whole sum assured, and for such part only as is expressly stipulated above." Here both notes and interest are put on the same ground, showing that no distinction was intended, and the company in terms is made liable as stipulated, that is, for BO many tenths of the original sum insured; and there were other provisions in the policy adverted to in the opinion show- ing that no forfeiture was to arise because of any default in payments, whether of notes or interest. This case, it will be seen, may therefore be widely distinguished from the one at bar, in that the policy in terms secures a proportionate part against forfeiture; while here, as we have seen, it is expressly forfeited for non-payment of interest, with no relief provided. The same distinction may also be made in regard to the cases of Hull v. Northwestern Mut. Life Ins. Co., 39 Wis. 406; Northwestern Mut. Life Ins. Co. v. Little, 56 Ind. 504; Ohde v. Northwestern Life Ins. Co., 40 Iowa, 357; Symonds v. North- western Life Ins. Co., 23 Minn. 491; Northwestern Mut. Life Ins. Co. v. Ross, 63 Ga. 199; and Northwestern Mut. Life Ina. Co. v. Bonner, 36 Ohio St. 51. In all these cases the policies were the same as in the case cited from 4 Mo. App., supra. Of all the cases therefore cited in behalf of the plaintiff, only two remain which are weighty in the opposing scale. The firet and the stronger case is that of Coivles v. Continental Life Ins. Co. (the present defendant), decided July 31, 1855, by the Bupreme court of New Hampshire, where the action was assump- tit on a paid-up policy identical in its provisions with the one now in suit, and where the defense was the same. It is, there- fore, irreconcilably in conflict with the positions we have taken. In the brief but forcible opinion delivered by Doe, C. J., there is no reference to the authorities. The basis upon which the reasoning rests will fully appear from the following quota- tion: "A significant clause of the contract is a conspicuous marginal advertisement describing the writing as a ' non-for- feitable endowment policy.' The forfeiture clause qualified by the provision for a ' paid-up ' policy does not mean that the reduced ' paid-up,' 4 non-forfeiture ' insurance is annually for- feitable for non-payment. The strict construction for which the defendant contends would leave the insured exposed to a danger from which the reduction and conversion of the policy 110 HOLM AN v. CONTINENTAL LIFE INS. Co. [Conn. would be generally understood to relieve him; and it is not to be presumed that the document was ingeniously drawn up for the purpose of fraudulently obtaining money by non-forfeiture pretenses. All parts of the contract taken together can be, and should be, reasonably and liberally understood as designed to accomplish the scheme of non -forfeiture for non-payment, which men in general would believe the policy invited them to accept." The other case is Bruce v. Continental Life Ins. Co., 58 Vt. 253, decided February 26, 1886, by the supreme court of Ver- mont, and reported in the Eastern Reporter, vol. 4, No. 6, p. 452. This was a bill in chancery to compel the delivery of a paid-up policy, and payment of the amount due. The court gave the same construction to the original policy as was given in the New Hampshire case, but certain circulars issued by the com- pany, and the fact found in the case that the company re- garded the premium notes as given for a loan of money, seem to have been influential with the court. This case, however, recognizes a distinction already adverted to, and which we think applicable to the case now under con- sideration. Powers, J., in giving the opinion, said: " The case at bar is unlike Patch v. Phoenix etc. Ins. Co., 44 Vt. 481. There the question arose upon the construction of a paid-up policy, issued in place of a former one surrendered, which con- tained an express stipulation that certain sums of interest should be paid in advance. The action was assumpsit on the paid-up policy, and no question was made whether the paid-up policy was in such form as the insured was entitled to. Such as it was he accepted it, and the action was upon it in the form it was issued and accepted." It is manifest that our argument in some particulars has gone beyond the strict requirements of the present case, and has tended in some measure to show that the form of paid-up policy issued to the plaintiff, and accepted by him, was in ac- cordance with the original policy; but in view of the adverse construction of the same kind of policy by the courts of New Hampshire and Vermont, and the want of unanimity among the members of this court upon this subject, we think it best to leave that part of the discussion an open question for future consideration should the matter again arise, and to restrict the present decision to the precise question stated at the opening of our discussion, whether the paid-up policy involved in this NOV. 1886.] McFARLAND V. SlKES. Ill suit contains a provision whereby the failure to pay interest has accomplished the forfeiture of the policy. We advise that the answer of the defendant to the complaint is sufficient. PARK, C. J. t and PARDEE, J., concurred. CARPENTER and GRANGER, JJ., dissented. WAIVER BY INSURANCE COMPANY OF CONDITION RESPECTING PAYMENT o PREMIUM NOTE: See Hodsdon v. Guardian L. Ins. Co., 93 Am. Dec. 73, and note 75; Wearoin v. Universal L. Ins. Co., 39 Am. Rep. 657; Alexander v. In- tura.nct Co., 58 Id. 869; Murphy v. Southern L. Ins. Co., 27 Id. 761; Mutual L. Ins. Co. v. Frendt, 27 Id. 443; Pomeroy v. Insurance etc. Co., 59 Id. 144; CoUon States L. Ins. Co. v. Leister, 35 Id. 122; Prentice v. Knickerbocker L. Ins. Co., 33 Id. 651; Viele v. Oermania Ins. Co., 96 Am. Dec. 83. INSURANCE COMPANY is ESTOPPED TO INSET ON FORFEITURE FOR DELAY IN PAYMENT OF PREMIUMS, if its course of conduct had led the insurer to believe that the premiums would be received after the appointed day: Applcton v. Pluxnix etc. Ins. Co., 47 Am. Rep. 220; Helmc v. PJdladelphia Int. Co., 100 Am. Dec. 621; and see Lyons v. Insurance Co., 54 Am. Rep. 354. POLICY FORFEITED BY NON-PAYMENT OF PREMIUM is NOT REINSTATED by mere demand of payment of the premium: Colven v. Continental Fire Ins. Co., 60 Am. Rep. 24. MoFAELAND V. SlKES. [54 CONNECTICUT, 250.] RULE THAT PAROL EVIDENCE is INADMISSIBLE TO CONTRADICT OR VARY RirriN CONTRACT applies only to a written contract which is in forca as a binding obligation. WRITTEN CONTRACT HAY BE DELIVERED UPON CONDITION, but it does not become a binding obligation until the condition upon which its delivery depends has been fulfilled. POSSESSION or Iforc BY PAYEE is PRIMA FACIE EVIDENCE THAT IT HAD BEEN DELIVERED, but the fact may be shown to be otherwise by parol evidence. Such evidence does not contradict the note, or seek to vary its terms, but merely goes to the point of its non-delivery. PABOL EVIDENCE is ADMISSIBLE, IN ACTION ON PROMISSORY NOTE, to show that it was delivered by the defendant to the plaintiff on condition that it should be returned to the defendant on a certain day, if demanded, and that it was so demanded, but the plaintiff refused to surrender it. ACTION on a promissory note. The opinion states the case. C. //. Briscoe, J. P. Andrews, and D. A farcy, for the ap- pellant J. L. Hunter and B. II. Bill, for the appellee. 112 MCFARLAND v. BIKES. [Conn. By Court, PARK, C. J. This is a suit upon a note of three hundred dollars. On the trial in the court below the defend- ant offered evidence to prove, and claimed to have proved, that previously to the execution and delivery of the note the plaintiff, who was a grand juror of the town of Ellington, where the defendant resided, and was acting as the attorney of one Mary Quinn, accused the defendant of having made an assault upon the person of the said Mary, and threatened him with a criminal prosecution unless he settled with her for the injury; that the defendant thereupon admitted that he had done wrong in the matter, and offered one hundred dollars to settle it; that the plaintiff demanded three hundred dollars, which the defendant was unwilling to pay; that the defend- ant was without counsel, and asked to be allowed till the fol- lowing Tuesday to consider the matter, and offered to give his note for three hundred dollars, to be held by the plaintiff till then, and if he did not then appear, to be held by the plaintiff as a settlement for the injur}' to the said Mary, but if he should appear, to be returned to him to be canceled; that thereupon the plaintiff wrote the note in suit, which the defendant executed and delivered to the plaintiff, to be held by him upon the conditions stated; and that the defendant at the same time declared that he should appear and demand a return of the note. The defendant also offered evidence that on the following Tuesday he appeared before the parties and demanded the return of the note, but that the plaintiff refused to surrender it. With reference to this evidence, the defendant requested the court to charge the jury " that if the note was delivered to the plaintiff with the understanding between him and the defend- ant that it was to be delivered up to the latter on his demand on the Tuesday following, and the defendant demanded its return on that day, the plaintiff cannot recover, and the ver- dict must be for the defendant.'' The court did not so charge the jury, but substantially that if they should find all the facts claimed by the defendant to be proved, they did not con- stitute a defense to the action. We think the court erred in refusing to charge as requested, and in charging as it did. The error was in applying to the case the familiar and well-established rule that parol evidence is inadmissible to contradict or vary a written contract. A written contract must be in force as a binding obligation to make it subject to this rule. Such a contract cannot be- Nov. 1886.] MCFARLAND v. SIZES. 113 come a binding obligation until it has been delivered. Its delivery may be absolute or conditional. If the latter, then it does not become a binding obligation until the condition upon which its delivery depends has been fulfilled. If the payee of a note has it in his possession, that fact would be prima facie evidence that it had been delivered; but it would be only prima facie evidence. The fact could be shown to be otherwise, and by parol evidence. Such parol evidence does not contradict the note or seek to vary its terms. It merely goes to the point of its non-deliv- ery. The note, in its terms, is precisely what both the maker and the payee intended it to be. No one desires to vary its terms or to contradict them. In the case of Benton v. Martin, 52 N. Y. 570, the court say: " Instruments not under seal may be delivered to the one to whom upon their face they are made payable, or who by their terms is entitled to some interest or benefit under them, upon conditions the observance of which is essential to their valid- ity. And the annexation of such conditions to the delivery is not an oral contradiction of the written obligation, though negotiable, as between the parties to it or others having notice. It needs a delivery to make the obligation operative at all; and the effect of the delivery and the extent of the operation of the instrument may be limited by the conditions with which the delivery is made." In the case of Schindler v. Muhlheiser, 45 Conn. 153, the head- note is as follows: "The defendant had given the plaintiff his note for certain real estate conveyed to him by an abso- lute deed by the plaintiff. Held, in a suit on the note, that parol evidence was admissible, on the part of the defendant, to show that the conveyance was not intended as a sale, but was made by the plaintiff for a certain purpose of his own, and upon an understanding with the defendant that the land was afterwards to be conveyed back, and that the note was given at the time under an agreement that it was not to be paid." The defense in that case was really that the note had never been delivered as a note binding upon the defendant. The delivery was merely formal, and was so understood by the parties. See also Adams v. Gray, 8 Conn. 11; 20 Am. Dec. 82; Collins v. Tillou, 26 Conn. 368; 68 Am. Dec. 398; Clarke v. Tappin, 32 Conn. 56; Post v. Gilbert, 44 Id. 9; Hubbard v. Ensign, 46 Id. 585. A*. ST. I'.EP.. VOL. I. -8 114 TOBEY v. HAKES. [Conn. We think the court erred in refusing to charge the jury as requested by the defendant. The view we have taken of this question renders it unneces- sary to consider the other questions made in the case. There is error in the judgment appealed from, and it is re- versed, and a new trial ordered. ADMISSIBILITY OF PAROL EVIDENCE TO EXPLAIN WRITTEN INSTRUMENT: See Blossom v. Griffin, 67 Am. Dec. 75, and note 80; Cobb v. Wallace, 98 Id. 435, and note 441; Keller v. Webb, 28 Am. Rep. 209; Hatch v. Douglas, 40 Id. 154; generally such evidence is inadmissible to contradict or vary the terms of a written contract: Id.; Shaw v. Shaw, 79 Am. Dec. 605, and note 606; McKim v. Aulbach, 39 Am. Rep. 470; Allen v. Rundle, 47 Id. 599; Martin v. Lewis, 32 Id. 682; parol evidence is inadmissible to change a simple indorse- ment of a promissory note into an indorsement without recourse: DoolMle v. Ferry, 27 Id. 166; Krn v. Von Phul, 82 Am. Dec. 105; and where a contract is to be performed "immediately," such evidence is inadmissible to excuse delay in the performance: McDermott v. Railroad Co., 39 Am. Rep. 526. PAROL EVIDENCE is ADMISSIBLE TO ESTABLISH FACT COLLATERAL TO WRITTEN INSTRUMENT, which would control its effect and operation as a binding engagement: Wedlinger v. Smith, 40 Am. Rep. 727; and generally Bach evidence is admissible to explain ambiguity, or to apply the terms of the contract to the subject-matter: Stoops v. Smith, 97 Am. Dec. 76, and note 80. To SHOW PARTIAL FAILURE OF CONSIDERATION OF PROMISSORY NOTB AS DEFENSE, parol evidence of what took place at the time the note was made is admissible: Peterson v. Johnson, 94 Am. Dec. 581. PAROL EVIDENCE OF AGREEMENT BETWEEN PAYEE AND DRAWER, that the drawer of a bill was not to be liable; is inadmissible: Cummings v. Kent, 58 Am. Rep. 796. PROMISSORY NOTE MAY BE DELIVERED AS ESCROW, to take effect, upon the happening of a certain event, to be proved by parol, but such proof must not go to the extent of varying the terms of a note absolute on its face: Foy v. Blackstone, 83 Am. Dec. 246, and see note 248. TOBEY v. HAKES. [54 CONNECTICUT, 274.] WRIT OF MANDAMUS is NOT REGARDED AS APPROPRIATE REMEDY for the enforcement of contract rights of a private and personal nature, and obligations which rest wholly upon contract, involving no questions of public trust or official duty. And the writ will not ordinarily issue if the applicant has other adequate remedies. MANDAMUS WILL NOT LIE TO COMPEL SECRETARY OF PRIVATE CORPORATION TO ALLOW the transfer of stock on the books of the corporation. MANDAMUS. The facts appear in the opinion. H. E. Pardee, for the appellant. T. M. Maltbie, for the defendant. Nov. 1886.] TOBEY v. HAZES. 115 By Court, CARPENTER, J. This is an application for a man- damus to compel the secretary of the Utica Cement Manufac- turing Company, a private corporation, to allow the plaintiff to transfer stock on the books of the company to a purchaser, and to issue a certificate therefor. The superior court denied the application, and the plaintiff appealed. Regularly, the writ of mandamus lies against a public officer to compel the performance of a public duty: American Asylum v. Phoenix Bank, 4 Conn. 172; 10 Am. Dec. 112. Hosmer, C. J., says in that case: " It never lies to restore to a private office, or to execute a private right." It being a prerogative writ, there can be no doubt that at common law it was thus limited. Cn Fuller v. Plainfield Academic School, 6 Conn. 532, the writ was held to lie against an incorporated school, " a corpora- tion established by the supreme power of the state for public and beneficial purposes." The question we are now considering was not made in that case. It was claimed that the defend- ant was an eleemosynary corporation of private endowment, and that the court had no power to review the action of the trustees. But it was held that, being a corporation with a special charter from the general assembly, it was controllable by the laws of the land, to be administered by competent tribunals. It seems to have been tacitly conceded that the object of the corporation was for the public good, and that the office of trustee was of a public nature. In Duane v. McDon- ald, 41 Conn. 517, this court said : " We see no necessity for ex- tending the common-law remedy of mandamus beyond its original and well-established limits." In Parrott v. City of Bridgeport, 34 Id. 180, 26 Am. Rep. 439, it again said: " But the writ of mandamus has never been considered as an appro- priate remedy for the enforcement of contract rights of a pri- vate and personal nature, and obligations which rest wholly upon contract, and which involve no questions of public trust or official duty." This suit is against a private corporation, and its object is to enforce a mere private right. It is in no sense a proceeding to enforce the performance of a public duty. We have no precedent in this state for allowing this writ to compel the transfer of stock in a private corporation, and the authorities elsewhere are against it: Cushman v. Thayer Mfg. J. Co., 76 N. Y. 365; 32 Am. Rep. 315; Townee v. Nichols, 73 Me. 515; State v. People's Building etc. Association, 43 N. J. L. 389; Bank etc. v. Harrison, 66 Ga. 696. 116 SHERWOOD v. WHITING. [Conn. There is another ground on which the writ was properly re- fused. It is familiar law that the writ will not ordinarily issue if the plaintiff has other remedies. If the corporation improperly refuses to transfer the stock, it is clearly liable for the damages in an action at law. If that remedy is not ade- quate, or if for any reason he is entitled to the specific stock purchased, a court of equity will entertain jurisdiction, and grant relief. There is no error in the judgment complained of. MANDAMUS, WHEN IT DOES AND WHEN IT DOES NOT LIE: See Weeden v. Town Council, 98 Am. Dec. 373, and note 375; Pumphrey v. Mayor etc., 28 Am. Rep. 446; Vicksburg etc. R. R. Co. v. Lowry, 48 Id. 76; State v. Stevens, 33 Id. 175; will not lie against the governor: Jonesboro etc. Turnp. Co. v. Brown, 35 Id. 713; Mauran v. Smith, 5 Id. 564; is not the remedy in case of doubtful right: People v. Johnson, 39 Id. 63; and writ of, will not issue if there exists a plain and adequate remedy in the ordinary course of law: State T. MeCnllua, 06 Am. Dec. 169, and note 171. IN CASE OF PRIVATE CORPORATION, MANDAMUS MAY ISSUE on its petition against persons claiming to hold its offices: American R"y etc. Co. v. Haven, 3 Am. Rep. 377; but does not lie to compel the transfer of stock by a private corporation to a purchaser: Freon v. Carriage Co., 51 Id. 794, and note 798. MANDAMUS LIES TO COMPEL CUSTODIAN OF EXCISE BONDS TO ALLOW a citizen interested in inspecting them to have access to them: Brown v. County Treasurer, 52 Am. Rep. 800; and where a railway company attempts to dis- criminate against one by refusing to sell him commutation tickets at the same rate that it sells them to the public generally, the sale may be en- forced by mandamus: State v. Delaware etc. R. R. Co., 57 Id. 543; and a stockholder in a private corporation may have mandamus to compel the'pro- duction of its books and papers to enable him to ascertain and secure his rights: Commonwealth v. Phoenix Iron Co., 51 Id. 184. APPROVAL OF OFFICIAL BOND is JUDICIAL AND NOT MINISTERIAL DUTY, and is not compellable by mandamus: Ex parte Harris, 23 Am. Rep. 559. SHERWOOD v. WHITING. [54 CONNECTICUT, 830.] ERRONEOUS MENTION OF INCIDENT IN HISTORY OF TITLE TO PIECE OF LAND is WITHOUT FORCE as against the mention of metes, bounds, courses, distances, and visible monuments, when the question is, whether the deed is sufficient, as to form, to convey the land intended. COURTS SHOULD UPHOLD RATHER THAN DESTROY DEEDS; and in the dis- charge of their duty in this respect, errors in description are frequently declared to be of no effect. DEED CONSTRUCTION AND EFFECT. The property intended to be con- veyed was described as follows: "All the real estate of 0. S., deceased, which was distributed to F. S. in the distribution of said estate, and Jan. 1887.] SHERWOOD v. WHITING. 117 afterwards conveyed to me by said F. S." In point of fact, P. S. had conveyed to the grantor before the distribution, and not after, and for the purpose of concealing the property from his creditors; but his deed fully described the land conveyed. In a suit to compel the heirs of the grantor to execute a corrected deed, held, that it needed no correction; if legally sufficient in form, such deed conveys a title which is unassail- able; and for the purpose of determining its sufficiency in form, the only tests to be applied are those which would be applied to a deed executed upon a valuable consideration. SUIT for reformation of a deed. The opinion states the case. J. C. Chamberlain, for the plaintiffs. H. J. Curtis and J. A. Joyce, for the defendants. By Court, PARDEE, J. In 1848, Oran Sherwood, of Fairfield, died intestate, leaving real estate, a widow, and four children. Of these last was Franklin Sherwood, the plaintiff. On March 1, 1856, he conveyed his undistributed interest in his father's estate to his mother, saying in his deed that he intended "to convey my entire undivided title and interest in and to all the estate of my father, the said Oran Sherwood, late deceased, within said tract of land, as heir at law of my said father therein." This conveyance was made for the purpose of conceal- ing the property from his creditors. On June 16, 1856, distri- bution was made. On February 19, 1883, his mother, desiring and intending to reconvey to him precisely what he had con- veyed to her, executed and delivered a deed to his wife, for his benefit, in which she described the property as follows: "All the real estate of Oran Sherwood, deceased, which was distributed to Franklin Sherwood in the distribution of said estate, and afterwards conveyed to me by said Franklin Sherwood by sundry deeds, as recorded in Fairfield land records." In point of fact, Franklin Sherwood had conveyed to her before, not after, distribution. Mrs. Sherwood, the grantor, is dead. Franklin Sherwood usks, in effect, that her heirs at law may be compelled to execute a corrected deed. They resist, and insist that inasmuch as he conveyed the land to his mother for a fraudulent purpose, equity will leave him where ho placed himself. If we should concede that if Mrs. Sherwood had refused to reconvey the land to her son the court would not come to his relief, this case would not be disposed of. She made a conveyance; if that is legally sufficient in form, the plaintiff's title is unassailable; and for the purpose of deter- mining the question as to its sufficiency in form, the tests, and 118 SHERWOOD v. WHITING. [Conn. only those, are to be applied which would be applied to a deed executed upon a valuable consideration. Every concession which would be made in behalf of the latter is to be made in behalf of the former. And if the deed had been made to a purchaser for full and valuable consideration, we think the heirs of the grantor could not obtain the assistance of any court in an effort to inherit both the consideration and the property. There is and can be no doubt or question as to the identity or location of the piece of land in which Franklin Sher- wood had an interest. In his deed to his mother, he gave the boundaries and contents; he stated that there had been no distribution, plainly implying that there would be; such dis- tribution was made and recorded; by this, his part was set to him by metes and bounds; and the mother, in her reconvey- ance, declares that she intends to restore to him precisely that which he conveyed to her, and refers to the recorded distribu- tion, where it is described to a certainty in every particular. Having secured absolute certainty by giving metes and bounds and quantity, and naming visible monuments, by way of supererogation, the grantor undertakes to mention a certain event in the history of the title to that land, and mistakenly states that it occurred before the conveyance to herself, when, in fact, it occurred after. The mention affects no metes or bounds or monuments, no courses or distances; no doubt as to identity is raised. Every person reading it had either actual or constructive notice of the mistake in stating the order of those events, for both distribution and deed were upon the public records, and declared that order. There is no finding that any person has acquired any right or interest in or title to the premises by conveyance from either Oran Sherwood or Lis mother, or by adverse occupation, which conflicts with the plaintiff's claim of ownership. As a matter of law, as a rule of construction this needless and erroneous mention of an incident in the history of the title to a piece of land is to be held to have no force as against the mention of metes, bounds, courses, distances, and visible monuments, when the question is, whether the deed is sufficient, as to form, to convey the land intended. It 13 the duty of courts to uphold rather than to destroy deeds. It is the fundamental canon of interpretation of con- tracts to discover and give effect to the intention of the parties. In the case before us, the finding makes it certain that the mother intended to reconvey to her son precisely that interest Jan. 1887.] SHERWOOD v. WHITING. 119 in his father's estate which he had conveyed to her before dis- tribution. When a piece of land is so described that a survey- or's chain can be stretched along its boundaries with absolute certainty as to each course, distance, and monument, a trans- position of dates, in stating previous conveyances constituting the chain of title, will not cloud or affect that certainty, nor destroy the operative force of a conveyance. We cite a few of the many instances given in the reports where courts, in the discharge of their duty to find and carry out the intent, have declared that certain words of description in deeds are to be of no effect, which apparently are far more likely to give rise to a doubt as to identity than is the erroneous word in the deed before us. In Worthington v. Hylyer, 4 Mass. 196, the words of description are: "All that my farm of land in said Worthington on which I now dwell, being lot No. 17, in the first division." The land demanded in that action was not included in lot No. 17, yet the court held that it passed, the first being sufficient to ascertain the estate intended to be con- veyed, and that the additional description inconsistent with the former was to be rejected, because, if it were to be consid- ered as an essential part of the description, the deed would be void for repugnancy. In Gate v. Thayer, 3 Me. 71, the question was as to one of the lines of the town of Dresden, which was described as a course " north-northwest, including the whole of Gardiner's farm "; .and the court held that the whole farm was included, although intersected by a line run- ning north-northeast, because the farm was to be considered as a monument. In Keith v. Reynolds, 3 Id. 393, the description was: "A certain tract of land or farm in Winslow, including in the tract which was granted to Ez. Pattee," and afterwards there was added a particular description by courses and dis- tances, which did not include the whole farm. It was con- tended that the particular description should prevail, in pref- ence to the other, which was more general and uncertain; but it was decided that the first description was certain enough, and that it was to be adopted rather than the description by courses and distances, which was more liable to errors and mistakes. In Lodge v. Lee, 6 Cranch, 237, the description waa: " All that tract or upper island of land called Eden "; and then it was added, " beginning at a maple tree," and de- scribing the land conveyed by bounds, courses, and distances; but so as not to include all the island. The court held that the whole island passed. In Jackson v. Barringer, 15 Johns. 120 SHERWOOD v. WHITING. [Conn. 471, the grant was: "The farm on which J. J. D. now lives," which was bounded on three sides, and to contain eighty acres in one piece. The farm contained a hundred and forty-nine acres; and the decision was, that the whole farm passed. In Swyft v. Eyres, Cro. Car. 546, the land conveyed was described as " all the grantor's lands lying in Chesterton, viz., seventy- eight acres of land, with all profits, tithes, etc."; and then were added the words, " all which lately were in the occupa- tion of Margaret Peto." It was found that the tithes of these glebe lands were never in the tenure of Margaret Peto, though other lands and tithes were. But it was held, notwithstanding, that the lands and tithes first described passed. In Eliot v. Thatcher, 2 Met. 44, note, the land conveyed was thus described: "All my real property, or homestead so called, lying and being in Dartmouth, together with about thirty acres of land, let the same be more or less; for more particular boundaries reference may be had to a deed given by Clark Ricketson to David Thatcher of the above-mentioned premises." It appeared that the grantor was seised only of a part of the land which he bought of Ricketson, but he had bought some land adjoining thereto, being in the whole about thirty acres, and it was de- cided that the whole passed; it being held that the word "home- stead" was a sufficiently certain description, and that the grant ought not to be limited and restrained by the subsequent reference to Ricketson's deed, it being a well-known rule of construction of deeds that a precedent particular description shall not be impaired by a subsequent general description or reference, and that deeds are to be construed according to the intentions of parties; and that if there be any doubt or repug- nancy in the words, such construction is to be made as is most strong against the grantor, because he is presumed to have had a valuable consideration for what he parts with. In Hastings v. Hastings, 110 Mass. 280, A., the owner of a farm, conveyed in 1853 by deed " the farm on which I now live, and is the same which was deeded to me by J. G., March 15, 1810, reference being had to said deed." A lot of land which had formed part of the farm for forty years was not included in the deed of March 15, 1810, but had been con- veyed to A. by J. G. by a deed dated January 11, 1810. It was held that this lot passed by the deed of A. In Melvin v. Proprietors etc., 5 Met. 15, 38 Am. Dec. 334, the heirs of K. gave deeds to C. of land which they described as the " estate on which C. now lives," or the " estate called the C. farm," and Jan. 1887.] SHERWOOD v. WHITING. 121 " being the same which was conveyed by M. to K. by deed " bearing a certain date; and it was shown that C., as lessee of K. and otherwise, had previously occupied the whole farm for many years. It was held that the deeds conveyed the right and title of the heirs to the whole farm, although the deed from M. to K., which was therein referred to, did not include the whole. The court says: "Another rule of construction is, that if the description be sufficient to ascertain the estate in- tended to be conveyed, it will pass; although some particular circumstance be added inconsistent with the description If the land had been conveyed by reference to known monu- ments and boundaries, it would be clear that a subsequent reference to the mortgage deed would not operate by way of restriction; and we think there is no good reason why the description in these deeds, the boundaries of the farm conveyed being certain and undoubtedly well known to the parties, should not be held equally conclusive." In Deacons etc. v. Walker, 124 Mass. 69, A mortgaged a "farm" known as the "T. place," "together with all the buildings thereon, including mills, water power, machinery, and fixtures belonging thereto," " being the same estate which was conveyed to me by B by her deed " duly recorded, " to which said deed and the record thereof reference is made for a description of said premises." The deed from B did not include a small parcel of land on which stood the only mill of A, with the connected buildings, but did include the dam and pond which furnished power to the mill. It was held that this parcel passed by the deed to A. The court said: " Reference is made to the Holden deed, not for the purpose of fixing the metes and bounds, as if describing the lot conveyed, but to show the grantor's chain of title." In Andrews v. Pearson, 68 Me. 19, in a convey- ance of a " homestead farm," one of the parcels composing it was described as " twelve and a half acres out of lot num- bered eight in the first range." It was held that the whole parcel passed, although it in fact contained twenty-five acres. The court said: " Freeman Allen was the owner of a farm of ancient and well-defined boundaries. He undertook to con- vey it to the plaintiff. He first described it as his ' home- stead farm.' He then undertook to give a further description of it by naming the several parcels or portions of which it was composed. One of them is described as twelve and a half acres out of a lot numbered eight in the first range. 122 SHERWOOD v. WHITINO. [Conn. This portion of the farm, in fact, contained twenty-five acres. The question is, whether this mistake left half of this parcel unconveyed. We think not. We think it falls within the principle, falsa demonstratio non nocet; a mere false description in one particular, where enough remains to make it reasonably certain what premises were intended to be conveyed, will not defeat the conveyance." In Union etc. v. Skinner, 9 Mo. App. 189, it is held that " when one sells a lot by its number as laid out in a recorded plat, and in giving a further description misstates the boundary line thereof, the monument will pre- vail, and the further false description be rejected." In Green Bay etc. v. Hewett, 55 Wis. 96, 42 Am. Rep. 701, a grantor by deed conveyed to the plaintiff and its successors and assigns forever, all his claim, right, title, and interest in or to a piece of land; in a subsequent clause he declares that the interest and title intended to be conveyed by the deed is only that ac- quired by virtue of a deed to him ; this last conveyed to him only an undivided half. It was held that his whole inter- est passed. In Wiley v. Lovely, 46 Mich. 83, a deed described the land conveyed as lot seventy-seven of the original plat of the village as recorded; this plat contained only twenty-nine lots; another plat, unrecorded, designated the lot as seventy- eight; another unrecorded plat contained the lot, and it was shown that it had been held, taxed, and dealt with for more than twenty-five years as lot seventy-seven. It was held that the error in description did not invalidate the conveyance. In Dwight v. Tyler, 49 Mich. 614, it was held that " when a deed contains a wrong description, but the land can be iden- tified by inquiry based on landmarks referred to, the title held by the grantor is not merely equitable but legal, and may be encumbered as such." The superior court is advised that the deed to Mary A. Sher- wood, one of the plaintiffs, in its present form, is effective to convey to her all of the right, title, and interest in the estate of Oran Sherwood which Franklin Sherwood conveyed to his mother, including the land upon which the right of dower rested. For that reason and for no other, that court is advised to dismiss the petition. DEEDS ARE TO BE CONSTRUED ACCORDING TO INTENT OP PARTIES, and where the manifest intent appears, words which are repugnant to it are to be rejected: Flagg v. Eames, 94 Am. Dec. 3G3, and cases collected in note 869; Graves v. Atwood, 52 Am. Rep. 610. Jan. 1887.] CREDIT Co. t;. HOWE MACHINE Co. 123 DEED is NOT VOID FOR UNCERTAINTY OF DESCRIPTION, if it can be made good by any construction: Pursley v. Hayes, 92 Am. Dec. 350; and see ley v. Lindsay, 5 Am. Rep. 427. IN AGREEMENT FOB DEED or LAND DESCRIBING IT BY NUMBERS DIMENSIONS, AND CONCLUDING, "known as the Cook and Clover block," the latter words controlled: Lyman v. Oedney, 55 Am. Rep. 871. CREDIT COMPANY, LIMITED, v. HOWE MACHINE Co. [54 CONNECTICUT, 857.] DRAFTS ACCEPTED BY TREASURER OF CORPORATION ARE PRESUMED TO BB PROPERLY ACCEPTED by the corporation, there being no circumstances to indicate fraud or illegality; and in an action by the holder against the corporation as acceptor, the burden of proof is upon the defendant cor- poration to show that the plaintiff had knowledge that the acceptances were for accommodation, and that he was not a bonaf.de holder for value. CORPORATION HAVING POWER TO DEAL IN MERCANTILE PAPER NECESSARY TO ITS BUSINESS is BOUND by acceptances of accommodation paper by its treasurer, except as against those having notice that the paper was for accommodation. BON A FIDE HOLDER FOR VALUE OF BILL OF EXCHANGE BEFORE ACCEPT- ANCE MAY ENFORCE IT against a subsequent acceptor, although no new consideration moves from him to the drawee. The rights of the holder of a bill of exchange are the same, whether they were acquired in an- ticipation of or subsequent to the acceptance. PERSONS DEALING IN COMMERCIAL PAPER OF CORPORATION ARE BOUND TO TAKE NOTICE of the extent of its power, but are not required to have knowledge of the circumstances under which it is exercised. And espe- cially is this so where the agent or officer of the corporation which exer- cises the power, at the same time represents the corporation, and speaks for it in giving information as to the circumstances. PERSON DEALING WITH CORPORATION is BOUND TO KNOW WHETHER OR NOT the officer or agent who represents it, and acts in its name, is authorized so to do. If he is, and the act is within the apparent scope of his au- thority, the dealer is not bound to have knowledge of extrinsic fact* making it improper for him to act in that case. ACTION upon four bills of exchange accepted by the treasurer of the defendant corporation. The plaintiff, an English finan- cial institution located in London, engaged in the business of discounting and buying bills, making loans, etc. The defend- ant corporation was organized under the laws of Connecticut, located in Bridgeport, but during the year 1877 had its principal business office in the city of New York. For many years prior to 1877 A. B. Stockwell was president of the de- fendant company, and his brother, Levi S. Stockwell, treas- urer; but the latter was both president and treasurer from 124 CREDIT Co. v. HOWE MACHINE Co. [Conn. January until August, 1877. In 1876 and 1877 A. B. Stock- well was engaged in speculating in stocks in London, and for many years prior to 1877, and until after the acceptance of the bills in suit he had an open account with the defendant on its books. He made large deposits with it, and drew on it in large amounts, and at the time of the acceptance of the drafts in suit his account was largely overdrawn. He drew drafts on the defendant company at the times and to the amounts specified, as follows: In December, 1876, to the amount of forty-five thousand dollars; on February 6, 1877, to the amount of thirty thousand dollars; on March 28, 1877, to the amount of thirty thousand dollars, all of which drafts were similar to the drafts in suit, and all were accepted and paid by the defendant; and all of these drafts were negotiated by the plaintiff for said A. B. Stockwell in a similar manner to the drafts in suit. On March 16, 1877, said A. B. Stock- well drew upon the defendant in favor of the plaintiff four drafts, three for ten thousand dollars each, and one for fifteen thousand dollars, all payable at ninety days' sight. All were addressed to the defendant, at its place of business in New York, and all were accepted on April 21, 1877, as of 7th of April, by Levi S. Stockwell, as treasurer of said defendant company. On March 26, 1877, the plaintiff, at the request of said A. B. Stockwell, indorsed these four drafts and sold them through a broker, one Baker, who also indorsed them to Mon- tague & Co. The drafts were presented to the defendant for acceptance April 7th, and acceptance was refused, but after- wards, on April 21st, they were accepted, as above stated. Said drafts were not paid on maturity, and were duly protested for non-payment; and upon notice of their non-payment, the plaintiff, being an indorser thereon and payee therein named, paid to Montague & Co. the amount of said drafts, and took them up. At a directors' meeting of the defendant company in 1865, it was "resolved that the treasurer be, and he hereby is, authorized and empowered to make, sign, indorse, and ac- cept notes, checks, and bills of exchange in the name and for and on account of this company, and generally to execute any and all papers relating to the business of the company." The directors adopted a resolution of similar import in 1874. It was shown that the directors and stockholders of the defend- ant company had knowledge of the accounts between the com- pany and A. B. Stockwell, and that said Levi S. Stockwell, the treasurer, was accepting drafts drawn on said company by Jan. 1887.] CREDIT Co. v. HOWE MACHINE Co. 125 said A. B. Stockwell; and there was no evidence that they ever objected to these transactions. J. Hume Webster is, and was during said transactions, the managing director of the plaintiff company, and also a member of the firm of Hume Webster & Co. of London, bankers. The plaintiff campany, on making sale of said four drafts, paid over the proceeds, less commissions, to said A. B. Stockwell, who placed them to his account with said Hume Webster & Co., to whom he was then indebted in a much larger amount. Said J. Hume Webster had knowledge of the stock speculations of said A. B. Stock- well, and that the money obtained by him on the drafts drawn by him on the defendant company was used by him in such speculations; but the other members of the firm of Hume Webster & Co., and of the plaintiff company, had not such knowledge. Upon the above facts, the case was reserved for the advice of the supreme court. R. S. Ranson and E. W. Seymour, for the plaintiff. W. D. Shipman, and M. H. Cardozo, S. H. Wheeler, Jr., and 0. Stoddard, for the defendant. By Court, CARPENTER, J. As this case was commenced be- fore the practice act went into operation, the pleadings are under the old practice. The defendant denies the matters alleged in the declaration, and gives notice, in substance, that it will prove that the treasurer of the defendant corporation was not authorized to accept these drafts; that the drafts being solely for the accommodation of the drawer, the company itself under its charter and by-laws had no power to accept them; and that the plaintiff is not a bona fide holder for value. The defendant's notice alleges that these bills were not ac- cepted by the defendant, or by or with its authority or consent, but were accepted by one of its officers without authority, and contrary to the provisions of its by-laws, of which the plain- tiff had notice. It is not contended that the treasurer had no power under any circumstances to accept any draft; for the votes of the directors and the course of dealing by the defendant clearly show that he had such power; but it is claimed that under the circumstances he had no power to accept these particular drafts. Obviously, the authority or want of authority in the treasurer to accept these drafts depended, not upon the nature of the act, but upon the attending facts and circumstances. 126 CREDIT Co. v. HOWE MACHINE Co. [Conn. That he had power to accept drafts under some circumstances is not denied. Hence, if they were drawn on account of the defendant's business, or to draw out of its treasury money which belonged to A. B. Stockwell, the power of the treasurer to accept them would be conceded. But the strength of the defendant's position in this part of the case lies in the fact that the defendant was not owing Stockwell, and the money was not wanted for any purpose connected with the defend- ant's business. As between the Stockwells or either of them and the defendant, the acceptances were unauthorized and void; but as between the plaintiff and the defendant, the an- swer to the question we are considering hinges upon the answer to another question, Is the plaintiff a bona fide holder for value? The proper answer to that question we shall consider later; but assuming for the present that the answer may be an affirmative one, we pass to the next question, which is, Was the defendant authorized to accept accommodation drafts ? Clearly not as to all parties with notice. But as corporations may accept drafts for some purposes, and as the purpose for which a draft is drawn does not ordinarily appear on its face, the question as to all parties with notice is, Was it drawn for a legitimate purpose? As to all others, the important inquiry is, Is the plaintiff a bona fide holder for value? And that brings us to the main question in the case. A preliminary question of some importance which bears directly on this question is, On whom was the burden of proof? In the pleadings, the defendant assumes that bur- den; and properly so upon principle. The drafts apparently may be for a legitimate purpose. As there is some presump- tion that all parties act properly, and within the scope of their powers, the plaintiff establishes a prima facie case when it presents the drafts duly drawn and accepted, there being no circumstances indicating fraud or illegality. And so are the authorities: Edwards on Bills, 686, 689; Daniel on Nego- tiable Instruments, 626, 662; 1 Parsons on Notes and Bills, 255. It is insisted that the plaintiff does not sustain to this de- fendant the relation of a bona fide holder for value, for the reason that the drafts were indorsed and negotiated by the plaintiff before they were accepted; and that therefore the plaintiff parted with nothing of value upon the credit of the acceptances. In support of this position, the case of Farmers' Jan. 1887.] CREDIT Co. r. HOWE MACHINE Co. 127 and Mechanics' Bank v. Empire Stone Dressing Co., 5 Bosw. 275, is cited. We are unable to accept that decision as a cor- rect exposition of the law. The court of appeals says of that case, in the case of Heuertematte v. Morris, 101 N. Y. 63, 54 Am. Rep. 657: " It is true that some expressions of the learned judge writing in that case may justify the citation, yet it should be considered that those remarks were unnecessary to the decision of the case, and the same court have twice since then refused to follow it. We conceive the rule there laid down finds no support in the doctrines of the text-writers or the reported cases If a party becomes a bona fide holder for value of a bill before its acceptance, it is not essen- tial to his right to enforce it against a subsequent acceptor that an additional consideration should proceed from him to the drawee. The bill itself implies a representation by the drawer that the drawee is already in receipt of funds to pay; and his contract is that the drawee shall accept and pay ac- cording to the terms of the draft. The drawee can, of course, upon presentment, refuse to accept a bill, and in that event, the only recourse of the holder is against the prior parties thereto; but in case the drawee does accept a bill, he becomes primarily liable for its payment, not only to its indorsees, but also to the drawer himself." It is not, therefore, true that the purchaser of a bill before acceptance trusts wholly to the credit of the drawer. He believes and expects that the drawee will accept; and upon such belief and expectation be acts. When Stockwell pre- sented these bills to the plaintiff, he contracted that the drawee would accept and pay them. Upon that promise the plaintiff relied. The reply to Heuertematte v. Morris, supra, is, that in that case the acceptor was an individual, and not a corporation; BO that no question arose as to the validity of the acceptance. But the validity of the acceptance is not the question we are now considering. We have already endeavored to show that the acceptance in the case at bar bound the corporation as to a bona fide holder for value. The precise question now is, whether a person who receives an accommodation bill before acceptance, no new consideration moving from him to the drawee, can avail himself of a subsequent acceptance. In Farmers' and Mechanics' Bank v. Empire Stone Dressing Co., 6 Bosw. 275, it was held that he could not. In Heuertematte v. Morris, supra, it was held that he could. The latter case 128 CREDIT Co. v. HOWE MACHINE Co. [Conn. was put upon the broad ground that the former was not law, and not upon any supposed distinction between corporations and individuals. The good faith of the holder must not be confounded with the validity of the acceptance. Although the latter may, and often does, depend upon the former, yet they are distinct questions for most purposes. An accommo- dation acceptance being valid, and the plaintiff otherwise a holder in good faith, the mere fact that he received the bill before acceptance does not make him a mala fide holder. In Arpin v. Owens, 140 Mass. 144, the court say: "It is im- material when an acceptance is made; it may be made at any time, and the rights of the payee and of the indorsee are the same after it is made, whether they were acquired in anticipa- tion of it or subsequent to it." These drafts were indorsed and sold by the plaintiff, and the avails were paid over to A. B. Stockwell. Stockwell paid the money so received to Hume Webster & Co. So far the transaction on its face is free from suspicion. It is not claimed that any fraud or illegality is found in terms. The most that can be claimed is, that there are certain circum- stances in the case from which fraud may be inferred. Those circumstances are, that Stockwell had been previously specu- lating in stocks with the knowledge of Webster; that in doing so he had become largely indebted to Hume Webster & Co., a firm in which J. Hume Webster was a partner; that J. Hume Webster was the agent by whom the plaintiff indorsed and sold these drafts; and that the money received therefor was in a short time paid over to Hume Webster & Co. in part liquidation of Stockwell's indebtedness to that firm. But these circumstances are not, in law, equivalent to fraud. At one time in England the question was held to be whether the plaintiff had taken the bijl under circumstances which ought to have excited the suspicion of a prudent and careful man: Gill v. Cubitt, 3 Barn. & C. 466. Afterwards the rule was so far modified as to require gross negligence: Crook v. Jadis, 5 Barn. & Adol. 909. Later still, gross negligence was held to be evidence of mala fides merely, and not the thing itself. In Goodman v. Harvey, 4 Ad. & E. 870, Lord Denman says: U I believe we are all of opinion that gross negligence only would not be a sufficient answer where the party has given consideration for the bill. Gross negligence may be evi- dence of mala fides, but is not the same thing. We have shaken off the last remnant of a contrary doctrine." Jan. 1887.] CBEDIT Co. t;. HOWE MACHINE Co. 129 In Swift v. Tyson, 16 Pet. 1, Story, J., says: " There is no doubt that a bona fide holder of a negotiable instrument for a valuable consideration, without any notice of facts which im- peach its validity as between the antecedent parties, if he takes it under an indorsement made before the same becomes due, holds the title unaffected by those facts, and may recover thereon, although as between the antecedent parties the trans- action may be without any legal validity." " Notice of facts which impeach its validity," means knowledge of those facts: Goodman v. Simonds, 20 How. 343; and by " facts" is intended facts which of themselves impeach the transaction, in this case fraud, and not other facts which tend to prove fraud or which excite suspicion: Goodman v. Simonds, supra. And such is the law of this state: Brush v. Scribner, 11 Conn. 388; 29 Am. Dec. 303. We think that is the law of this country; at least we are aware of no contrary decision. " But it must still be true," as is said in 1 Parsons on Notes and Bills, 259, " that while gross or even the grossest negli- gence is a different thing from fraud, the negligence may be such, and so accompanied, as to afford reasonable and suffi- cient grounds for believing that it was intentional and fraud- ulent." By this we apprehend that no more is meant than that the evidence may be so strong as to justify the court in finding fraud, and applies only to courts that pass upon both questions of fact and law, and has no application to this court, which must take the facts as they are found by the court below. It may be further claimed that the fraud here contended for is not the fraud of antecedent parties to the bills, but fraud, if it exists, to which the plaintiff itself is a party; and that if the facts and circumstances establish fraud with rea- sonable certainty, the court ought so to regard it, notwith- standing the fact that fraud is not expressly found. We apprehend that the proposition does not relieve the case of the objection that the question is still one of fact and not of law. Nevertheless, assuming that the principle involved in the proposition is a correct one, we will briefly examine the facts to see if it has any application to this case. To make the principle applicable, we think the facts should be of a conclu- sive character. If they are ambiguous, or consistent with the absence of fraud, they are not sufficient. There are certain facts essential to the conclusive character of this evidence, which are wanting; and their absence is sig- KP., VOL.L 9 130 CBEDIT Co. v. HOWE MACHINE Co. [Conn. nificaiit. It is not found that Webster knew that Stockwell had no funds in the defendant's treasury, against which these drafts were drawn. If Stockwell had in fact had funds there, that would have effectually repelled any imputation of fraud. Webster's knowledge of the purpose of the drafts, a previous agreement even with Stockwell that the avails should be paid to Hume Webster & Co., would have been of no consequence. So also if he really believed that the bills were drawn against funds. That he did so believe is probable, as certain undis- puted facts afford a reasonably good foundation for such a belief. For about three years Webster had known and had business dealings with Stockwell. Within a period of four months immediately preceding this transaction, the plaintiff indorsed and negotiated drafts by Stockwell on the defendant for seventy-five thousand dollars. Two days after the drafts in suit were negotiated, it indorsed and negotiated drafts by and on the same parties for thirty thousand dollars more. All these drafts were in fact accepted by the defendant, and paid at maturity. In December, 1876, when Stockwell presented to the plain- tiff drafts to the amount of forty-five thousand dollars, he, in legal effect, represented that he had funds in the defendant's hands; he virtually pledged his honor and reputation as a business man that it was true. When the defendant accepted those drafts, it admitted that those representations were true. The same representations were repeated by the parties in Feb- ruary, 1877, and on March 28th. All those representations were, for all the purposes of this case, true; for those drafts were all paid at maturity. Is it strange that the same repre- sentations made on the twenty-sixth day of March should be believed? It is not found that Webster knew that the drafts were drawn for the purpose of raising money to pay to Hume Web- ster & Co. If he had not such knowledge, how could he be justly chargeable with a fraudulent intent? Again, there is no finding that Stockwell was then in poor credit, or that Webster or Hume Webster & Co. supposed that they were in danger of losing by him. Hume Webster & Co. had, in the space of about one month, paid his checks to an amount exceeding one hundred thousand dollars. The plain- tiff, during the same month, indorsed his drafts to the amount of seventy-five thousand dollars. These facts afford some ground for believing that both parties regarded him as trust- Jan. 1887.] CREDIT Co. v. HOWE MACHINE Co. 131 worthy. If they did, pray what reason had they for colluding with Stockwell for the purpose of drawing money illegally and unjustly from the defendant? Moreover, the circumstances relied on as showing fraud are in themselves weak, and will hardly justify, much less require, the inference claimed for them. We may add that if bills of exchange, which are supposed to be the highest type of negotiable instruments, can be suc- cessfully impeached by such circumstances as exist in this case, the integrity of all such instruments must be seriously impaired, and their usefulness as a circulating medium well- nigh destroyed. In the next place, it is claimed that the plaintiff is not a bona fide holder, because the defendant's treasurer had no power to accept accommodation drafts; that the corporation itself had no such power; and that the plaintiff was bound to take notice of the powers of a corporation and its officers, and of the extent of their authority. On account of the complex character of this proposition, it can only be properly considered by treating each branch of it separately. We may admit generally that the treasurer had no authority to accept accommodation paper, and that the directors had no power to confer upon him such an authority. But in order to prevent injustice and maintain the integrity of mercantile paper, it is necessary to limit the application of the principle to parties with notice. This limitation necessarily results from the fact that every business corporation has power to deal in negotiable paper in the line of its business. As such paper does not ordinarily show on its face the circumstances of its origin or the purpose for which it is made, it becomes important to distinguish those who have notice of its charac- ter and purpose from those who have not. To say indiscrimi- nately that the holder of accommodation paper made by a corporation cannot be a bona fide holder simply because it is accommodation paper, ignores this important distinction, and amounts practically to begging the question. We pass now to the second branch of the proposition, that persons dealing in commercial paper of a corporation are bound to take notice of the extent of its power. Here, too, we may properly admit that the proposition is a correct one; but care should be exercised in its application not to extend it beyond its appropriate limits. To clearly understand those limits, a distinction is to be observed between the terms of a 132 CREDIT Co. v. HOWE MACHINE Co. [Conn. power and the circumstances under which it is exercised. Parties may well be required to take notice of the former; but to require them to have knowledge of the latter would in many cases result in gross injustice. Especially is this so where the agent or officer of the corporation which exercises the power at the same time represents the corporation, and speaks for it in giving information as to the circumstances under which it is exercised. No better illustration is needed than the case at bar. The treasurer of the defendant was the officer specially authorized by vote of the directors to accept bills of exchange; at the same time, by virtue of his office be was the person held out by the corporation as the proper one to in- form holders whether the drawer draws against funds. The corporation virtually says, " You may safely trust the word of our treasurer on that subject." When he speaks, the cor- poration speaks. By accepting the draft he declares that the drawer has funds, and that is the declaration of the corpora- tion. Mercantile paper does not require those who would be- come its holders to go to the acceptor and insult him by the question, Did you tell the truth when you accepted that paper? They have a right to assume that he tells the truth, and to act accordingly. If the treasurer in fact misrepresents the cor- poration, the corporation and not the person who trusts him should bear the loss. An instructive and very interesting case on this subject is Farmers' and Mechanics' Bank v. Butchers' and Drovers' Bank, 16 N. Y. 125. The defendant's counsel cite that case, and quote from it this sentence: " One who deals with an agent has no right to confide in the representation of the agent as to the extent of his powers." The court, however, clearly recognize the distinction to which we have adverted, namely, between the terms of a power, and extrinsic facts which may or may not, according to the circumstances, affect the rights of third persons when the power is exercised. That was an action on a certified check. The defense was, that the bank had no funds of the drawer. Immediately following the sentence quoted the court uses this language: "If, there- fore, a person, knowing that the bank has no funds of the drawer, should take a certified check, upon the representation of the cashier or other officer by whom the certificate was made that he was authorized to certify without funds, the bank would not be liable. But in regard to the extrinsic fact whether the bank has funds or not, the case is different. That Jan. 1887.] CREDIT Co. v. HOWE MACHINE Co. 133 is a fact of which a stranger, who takes a check certified by the teller, cannot be supposed to have any means of knowl- edge. Were he held bound to ascertain it, the teller would be the most direct and reliable source of knowledge, and he already has his written representation upon the face of the check. If, therefore, one who deals with an agent can be permitted to rely upon the representation of the agent as to the existence of a fact, and to hold the principal responsible in case the representation is false, this would seem to be such a case. It is, I think, a sound rule, that where the party dealing with an agent has ascertained that the act of the agent corresponds in every particular, in regard to which such party has or is presumed to have any knowledge, with the terms of the power, he may take the representation of the agent as to any extrinsic fact which rests peculiarly within the knowledge of the agent, and which cannot be ascertained by a comparison of the power with the act done under it." This case also holds that a certified check is substantially an accepted bill of exchange. The principle involved there- fore applies to this case, and is an authority against the de- fendant. It is true that, in the case at bar, the bills of exchange were not accepted when the plaintiff indorsed them; but we apprehend that that will not prevent the application of the principle. It is no uncommon thing for the payee to in- dorse a bill and put it in circulation before acceptance. The fact that he does so is in itself no evidence of bad faith. The principle seems to be that a person dealing with a cor- poration is bound to know whether or not the officer or agent who represents it and acts in its name is authorized so to do. If he is, and the act is within the apparent scope of his au- thority, he is not bound to have knowledge of extrinsic facts making it improper for him to act in that case. We must conclude, therefore, that the fact that the drawer had no funds in the hands of the drawee at the time these bills were drawn and negotiated, that fact being unknown to the plaintiff, is not a sufficient reason for holding that the plaintiff is not a bona fide holder. It is further claimed that the plaintiff is not a bona fide holder for value on account of the use which was made of the proceeds of these bills, they having been paid to Hume Web- ster & Co. to apply on a debt due that firm from Stockwell. This argument assumes, what we cannot admit, that the pay- ment was equivalent to a payment to the plaintiff on a debt 134 CREDIT Co. v. HOWE MACHINE Co. [Conn. due it. The firm of Hume Webster & Co. and the plaintiff are in fact and in law tw.o distinct persons; and we must so regard them until fraud or collusion is established which will make one responsible for the acts of the other. If the plaintiff was guilty of no fraud, and for reasons already suggested we must assume that it was not, then the plaintiff in good faith paid full value for these bills. If we were at liberty to regard this as a scheme devised by Webster (acting in the name of the plaintiff, but really for Hume Webster & Co.) and Stock- well, to defraud the defendant for the benefit of Hume Web- ster & Co., we might be justified in holding that the plaintiff is not a bonafide holder. But we cannot reach that result as a legal conclusion from the facts as they appear. The main fact, the one thing essential to that conclusion, an arrange- ment to that effect then or previously made,- is not found. For these reasons a majority of the court are of the opinion that the plaintiff is entitled to recover, and the superior court is so advised. PAEK, C. J., dissented, being of opinion that the plaintiff corporation was not a bona fide holder of the drafts in question, for the following reasons, in brief: "The defendant corporation was limited by its charter to such use of mercantile paper as might be necessary in the prosecution of its business; and the plaintiff was bound to take notice of this limitation, and conduct itself accordingly. The plaintiff knew, through Hume Webster, its man- aging director, that the proceeds of these drafts were not to be used by the defendant in the prosecution of its business, but were to be used by the drawer, A. B. Stock well, for his own individual purposes in London, while engaged in speculating in stocks." He concludes: "I think the declara- tions of Stockwell gave Webster clearly to understand that the drafts were accommodation paper, and that consequently the plaintiff was not a bona Jlde holder of them, and judgment should be rendered for the defendant." NATURE OF ACCEPTOR'S CONTRACT: Parks v. Ingram, 55 Am. Dec. 153; lleaverin v. Donnell, 45 Id. 302; Swope v. Ross, 80 Id. 5G7, and note 570; Kupfer v. Bank of Galena, 85 Id. 309; acceptance for honor: Smith v. Sawyer, 92 Id. 576, and note 579; acceptance may be by parol: Jarvis v. Wilson, 33 Am. Rep. 18. ACCEPTANCE OP BILL UPON CONDITION, AND EFFECT OF: Ford v. Angel- rodt, 88 Am. Dec. 174, and note 178; Wells v. Brigham, 52 Id. 750. PRESUMPTION PROM ACCEPTANCE OF BILL, THAT ACCEPTOR HAS FUNDS OF DRAWER IN HIS HANDS, MAY BE REBUTTED, as between drawer and ac- ceptor, by showing that the bill was accepted and paid for the drawer's accommodation: Griffith v. Reed, 34 Am. Dec. 267, and note 270. ACCEPTANCE OF BILL BINDS ACCEPTOR IN FAVOR OF INDORSEE FOR VALUE, notwithstanding that the consideration upon which he accepted was an exec- utory contract which was not performed, and that the indorsee took with notice of the nature of the consideration, though not of the breach: Davi v. McCready, 72 Am. Dec. 461. Jan. 1887.] CREDIT Co. v. HOWE MACHINE Co. 135 To ACTION ON BILLS OF EXCHANGE ACCEPTED BY DEFENDANT, HE CAN- NOT INTERPOSE DEFENSE that the same were the property of a bank, and were transferred or pledged to the plaintiff as security for a loan by the cashier, who had no authority to so transfer or pledge them: City Bank v. Perkins, 86 Am. Dec. 332. ACCEPTANCE OF NEGOTIABLE PAPER is PRIMA FACIE EVIDENCE OF PAY- MENT OF ACCOUNT FOR WHICH IT is GIVEN: Paine v. Dwinel, 87 Am. Dec. 533. ACCEPTOR OF ACCOMMODATION BILL is NOT DISCHARGED by the failure of the holder to bring suit thereon against the drawer on request of the ac- ceptor: Diversy v. Moor, 74 Am. Dec. 157. ACCEPTOR OF FORGED BILL is BOUND TO KNOW DRAWER'S HANDWRITING, and if he accepts the bill and pays it to a holder lona fide and for a valuable consideration, he cannot recover back the money: Stout v. Benoist, 90 Am. Dec. 466. IT is No DEFENSE TO Sen AGAINST ACCEPTOR OF DRAFT WHICH HAS BEEN DISCOUNTED, and upon which money has been advanced by the plain- tiff, that the draft was accepted for the accommodation of the drawer: Davit v. Randall, 15 Am. Rep. 146. LAW LOOKS WITH FAVOR UPON HOLDER OF NEGOTIABLE PAPER, and re- quires very cogent evidence to convict him of bad faith: New Orleans Canal etc. Co. v. Templeton, 96 Am. Dec. 385; Park Bank v. Watson, 1 Am. Rep. 673; Chapman v. Rose, 15 Id. 401; Harger v. Worrall, 25 Id. 206. DEFENSES AVAILABLE TO ACCEPTOR OF NEGOTIABLE PAPER. The case of Webster 71 Id. 319; Snead v. Coleman, 1 Gratt. 300; 56 Am. Dec. 212. The judgment should have been properly against Driggs in his representative capacity: Branch v. Branch, 6 Fla. 314; but under our liberal system of amendments, which makes it the " duty of the courts of this state, and of every judge thereof, at all times to amend all defects and errors in any proceeding in civil cases" (McClellan's Digest, sec. 97, p. 834), if it had been called to the attention of the court at the trial, the record would have been amended by inserting the word " as " before the designation of his representative capacity, it being apparent from the body of the declaration that such was plainly the intention. It still being apparent from the record, there can be no objection to making the amendment at a subsequent term nunc pro tune. The record also shows AM. ST. KIP., VOL. I. - IS 194 PENINSULAR R. R. Co. v. GARY. [Florida, that it was Driggs, as administrator de bonis won, cum testa- mento annexo, who was intended, and this amendment was properly allowed. As to any rights acquired or lost under this judgment prior to the amendment in the court below we express no opinion. V There is no error in the record, and the judgment ia affirmed. JUDGMENT MAY BE ENTERED NUNO PRO TUNC WITHOUT NOTICE, nr ALA- BAMA, and perhaps ia all those states in which the action of the court must be determined solely from an inspection of its records: Fuqua v. Carriel, Minor, 170; 12 Am. Dec. 46; Glass v. Glass, 24 Ala. 468; Young v. State Bank, 4 Ind. 301; 58 Am. Dec. 630. A record may be amended in the lower court pending proceedings by writ of error or on appeal; and as amended, may be certified to the appellate court: Sew v. Barker, 2 Cow. 408; 14 Am. Dec. 515, and note. While the right to enter or amend a judgment nunc pro tune after the lapse of a term is, so far as we are aware, universally con- ceded, there ia a question with respect to the evidence upon which the action of the court may be based. Many of the courts will refuse to proceed ex- cept where their action can be based solely upon matters in the record, wherefrom the propriety and extent of their action become apparent. Others will act upon any competent legal evidence: Freeman on Judgments, sec. 63; Raymond v. Smith, 1 Met. 65; 71 Am. Dec. 458; Summersett v. Summersett'a Adm'r, 40 Ala. 596; 91 Am. Dec. 494; Smith v. Hood, 25 Pa. St. 218; 64 Am. Dec. 692. PENINSULAS KAILROAD COMPANY v. GARY. [22 FLORIDA, 356.] BOAD-MASTER AND CONDUCTOR OF RAILROAD COMPANY HAVE No AUTHORITY TO EMPLOY SURGEON to treat an injured employee of such company. John G. Reardon, for the appellant. S. D. McConnell, for the appellee. By Court, VAN VALKENBURQH, J. In February, A. D. 1882, Thomas P. Gary, by his attorney, sued the Peninsular Rail- road Company to recover the sum of $165, on account, for ser- vices rendered and medicines furnished to White Spate, as a physician and surgeon, at the instance and request of the de- fendant, in the county of Marion. A demurrer was filed by the defendant to the declaration, which was overruled by the court, and a plea was interposed of the general issue. In June, 1885, on the application and consent of the attorneys of both the parties, the cause was referred, under the statute, to Richard McConathy, a practicing attorney of the court, to hear said cause, and for final determination thereof, and with June, 1886.] PENINSULAR R. R. Co. v. GABY. 195 power to render judgment therein according to the statutes. On the 27th of July, 1885, the referee filed his report and find- ings. He found for the plaintiff, Thomas P. Gary, in the sum of $165, with interest thereon at the rate of eight per cent per annum from the thirteenth day of January, 1882, until paid, with costs. The defendant's attorney then moved the said referee for a new trial on the following grounds: 1. Be- cause the finding and judgment is contrary to law; 2. Be- cause the statement of the evidence used on said reference does not support said findings and judgment, and because they are contrary to the evidence; 3. Because the judgment is for a larger sum than is sued for, and for a larger amount than is proven. On the 29th of July, 1885, this motion was heard by the referee, who made the following order: "'It is ordered that the plaintiff be required to remit thirty dollars of the judgment herein on or before the 30th of July, 1885, else a new trial will be granted." On the 30th of July, the plaintiff remitted thirty dollars of the principal, and interest on said thirty dol- lars, of the judgment, and the referee overruled the motion for a new trial. The defendant excepted to this ruling of the court, and brings his appeal, assigning the following errors: 1. That referee erred in deciding that there was sufficient evidence on the part of the appellee to prove that the appel- lant had employed him, and undertaken to pay him for the surgical attention to White Spate; 2. The referee erred in finding that any authorized agent of the appellant had em- ployed in its behalf the appellee, or contracted with him to perform the surgical services in question; 3. The referee erred in deciding that the appellant was bound to pay the appellee for the services in question upon the employment of appellee by either Redd, the road-master, or Jolly, the conductor, of the appellant; 4. The referee erred in finding that White Spate was wounded while in discharge of a duty to appellant; 5. The referee erred in finding that the " statement of the evi- dence " operated as an admission of facts therein set forth, and in not finding that said statement only stated the testi- mony as given by the different witnesses; 6. The referee erred in finding that Redd, the road-master, had authorized the em- ployment of appellee; 7. The referee erred in finding that Jolly, the conductor, had employed appellee. The referee's finding and report, as it appears in the record, IB as follows: 196 PENINSULAR R. R. Co. v. GABY. [Florida, " Thomas P. Gary, plaintiff, v. Peninsular Railroad Company, defendant. " This action this day coming on for trial, came the parties by their respective attorneys, and thereupon the parties filed a statement of the evidence to be considered herein, which statement is now filed marked 'A' No. 1, which statement con- tains all the evidence heard on the trial. And this action being heard on the evidence, and the argument of counsel, and the referee being advised, delivered a written opinion herein which is now filed. Thereupon the referee finds that the law and the proof herein is for the plaintiff. It is therefore adjudged that the plaintiff, Thomas P. Qary, recover of de- fendant, Peninsular Railroad Company, the sum of one hun dred and sixty-five dollars, with interest thereon at the ratf Jackson County, on the first day of December, A. D. 1884, for $4,889.50, and the issue of execution thereon; that on the 21st of November, 1884, George A. Logan was induced by the fraud and deceit of the attorneys of Slade and Ether- edge, and by their agent, to execute a mortgage on some real estate in the town of Greenwood, and a stock of merchandise then in store at the same place, of which he was in possession, to said Slade and Etheredge, Garrett and Sons, the Eatherly Hardware Company, and Pollock & Co. The bill alleges also that a suit was pending in the circuit court of Jackson County, by Slade and Etheredge and their June, 1886.] LOGAN v. LOGAN. 213 co-mortgagees, against G. A. Logan, for the foreclosure of the mortgage; that such proceedings were had therein that an in- junction had been granted restraining G. A. Logan from sell- ing the goods otherwise than for cash, and requiring him to deposit the proceeds of such sale in the registry of the court; and further, that on the fourteenth day of February, 1885, the judge appointed a receiver to take charge of said stock of goods, and to dispose of them as directed. The bill prayed that Slade and Etheredge and their co- mortgagees might be restrained from prosecuting their suit further, and that the same be dismissed, and all steps taken therein be vacated and nullified. The defendants Slade and Etheredge filed an answer to the bill for the purpose of resist- ing the issuance of the injunction prayed for, and also a de- murrer to the bill on several grounds. The judge refused the injunction, and sustained the demurrer. One of the grounds of demurrer was that the complainant had an adequate remedy at law. We do not think this ground is tenable. While he had an undoubted right to have levied his execution at any time before the court had taken the goods into its custody, by the injunction commanding George A. Logan to sell them and deposit the proceeds in the registry of the court, and by the further appointment of a re- ceiver to take charge of and sell them, and while he might still have levied his execution by obtaining the permission of the court, upon a petition showing himself entitled to take such a course, yet the fraud alleged in the bill gave him also a concurrent right to come into a court of equity. Wait, in his treatise on fraudulent conveyances and creditor's bill, sec. 59, says: "A judgment creditor may proceed at law to sell under execution lands or property which his debtor has fraud- ulently alienated, which are subject to execution. The at- tempted transfer may be treated as a nullity, and the property subjected to seizure and sale upon execution, the same as though no covinous transfer had ever been made. The credi- tor, in such cases, may consider the debtor as still the owner of the property, and is entitled to purchase it in order to ob- tain satisfaction of the claim the same as if the title were unencumbered by the fraudulent deed or transfer": See also TTiomason v. Neeley, 50 Miss. 313. Further: " Fraud is one of the recognized subjects of equity jurisdiction, and is the most ancient foundation of its power. The existence, then, of the remedy at law does not interfere 214 LOGAN v. LOGAN. [Florida, with the right to resort to a court of equity for the vacation of the fraudulent conveyance as an obstacle in the way of the full enforcement of the judgment, and to remove a cloud on the title to the property": Wait on Fraudulent Conveyances, sec. 60. " The suit in equity is sometimes said to be an ancillary re- lief in aid of the legal remedy, as a court of equity does not intervene to enforce the payment of debts ": Wait on Fraudu- lent Conveyances, sec. 60. It is also alleged as a ground of demurrer that the execu- tion of complainant had not been returned to the clerk's office unsatisfied. The rule laid down by this court in Robinson v. Springfield Company, 21 Fla. 203, was to the effect that this was only necessary when the title to the property had never been in the debtor, but was held by another on a secret trust for him, or in case of an equitable asset which could not be levied on by execution- at law. When the creditor seeks the aid of a court of equity for the satisfaction of a judgment out of the property of his debtor, the title to which property has been in the debtor, but has been fraudulently transferred, it is sufficient for the creditor to show a judgment at law and execution to entitle him to resort to equity to vacate such fraudulent conveyance. The bill alleges that this mortgage was procured from G. A. Logan by a fraud practiced on him by the mortgagees and their attorneys. The defendants insist, and set it up as one of the grounds of the demurrer, that the fraud must have been participated in by both of the parties, the mortgagor and the mortgagee; and that the fraud of the mortgagees in pro- curing it made the mortgage voidable, and not void, and only at the instance of G. A. Logan; that the creditor could not avail himself of this right of his debtor. There is no doubt of the correctness of this proposition as insisted on by the counsel for the appellees. We think, how- ever, that this doctrine is confined to the fraud practiced on the debtor to induce him to execute the mortgage. The mort- gage being executed, and being free from all objections except the fraud in procuring it, the principle urged by counsel would apply. But this is not all the case made by the bill. In ad- dition to the allegation that its execution was procured by fraud, it alleges that as to the stock of merchandise it was void, because " it contained no provision for said Logan to account for the sales of said property, but he had, by the terms June, 1886.] LOGAN v. LOGAN. 215 of said deed, every right and power to dispose of said mer- chandise to the detriment of your orator." Of the fraud in procuring it to be executed the creditor can- not complain, but of the fraud inherent in the mortgage itself his rights as a creditor are involved, and he has such a right. If the creditor cannot assail the mortgage for being fraudu- lently procured, when it is executed he can assail it for fraud apparent upon it, by which his rights are affected. When we come to consider the mortgage itself, *we do so on its own terms, and not with reference to what influences were exercised to induce the debtor to execute it. In thus consid- ering it, if it in effect is a fraud upon the right of the creditor, the motives of the parties are of no consequence. The decis- ions on this point are numerous: See Robinson v. Elliott, 22 Wall. 513. "By the term 'fraud' the legal intent and effect of the acts complained of is meant. The law has a standard for measuring the intent of parties, and declares an illegal act prejudicial to the rights of others a fraud on such rights, al- though the parties deny all intention of committing a fraud": Kirby v. Ingersoll, 1 Harr. (Mich.) 172. And this principle was reaffirmed by the supreme court of Michigan, 1 Doug. 477, which found the transaction fraudulent without " imputing to the highly respectable parties in this case a premeditated or wicked intention to injure the interest of complainant." See also Graham v. Chapman, 12 Com. B. 85; Wheelden v. Wilson, 44 Me. 11; Grover v. Wakeman, 11 Wend. 187; 25 Am. Dec. 624. In this case, the court says the statute of frauds refers to a legal, and not to a moral, intent. Its legal intent is not to be gathered from the motives of the parties, but from the legal effect of their acts. If the allegation in the bill above quoted, that the mortgagor had by the terms of said mortgage every right and power to dispose of the merchandise, to the detriment of complainant, be true, and the demurrer admits its truth, we are of the opinion that the mortgage was void as to the creditors of G. A. Logan. Mr. Pearce, in a treatise on mortgages of merchandise, pages 1 and 2, asks these questions: 1. Is a mortgage of a stock of goods in trade, under which the mortgagor is permitted by the mortgagee to sell the goods at his discretion in the usual course of his business, essentially fraudulent as to creditors of the mortgagor ? 2. If it be, is it still so in case the agreement or understanding between the mortgagee and mortgagor, permit* 216 LOGAN v. LOGAN. [Florida, ting such sales, is not shown upon the face of the mortgage, but is proven by evidence aliunde f He says further "that a candid and impartial investigation finds both these questions answered in the affirmative by the great weight of American authority, considering the decisions not only as precedents, but as enunciations of principle." See also Robinson v. Elliott, 22 Wall. 513, and the numerous cases cited in Pearce on Mortgages of Merchandise. As to the .real estate mentioned in the mortgage, or any other property included in it, the possession of which was to remain with the mortgagor, and which he had no right to sell at his discretion, there being no objection to the mortgage of such property except its being procured by fraud, and that, as we have seen, not being a fraud available to complainant, the mortgage was valid, unless the fraud as to a part of the prop- erty vitiated the whole, a point which we do not decide. The decree of the court sustaining the demurrer is reversed, and the cause remanded for further proceedings not inconsis- tent with this opinion. WHERE STRANGER TO EXECUTION is IN POSSESSION OF PROPERTY, CLAIM- ING IT AS His OWN, by virtue of a transfer to him from the debtor, the officer must produce, not only the writ, but the judgment which authorizes its issuance; and a sale of property by a debtor cannot be attacked by a creditor merely because he is a creditor, but only when he has a judgment establishing his debt, and an execution issued thereon, or has some process regularly issued, as in the case of attachment, authorizing a seizure of the property: Bickerstaffv. Doub, 79 Am. Dec. 204. WHEN FRAUD DOES NOT APPEAR ON FACE OF CONVEYANCE, either the insolvent condition of the grantor at the time of his making the deed, or an actual intent to defraud, will bring the conveyance under the operation of the statutes against fraudulent conveyances: Filley v. Register, 77 Am. Dec. 522. JUDGMENT CREDITOR MAY RELY ON LIEN OF HIS JUDGMENT on real prop- erty, instead of resorting to equity, and a purchaser under an execution sale will have the right to impeach the debtor's conveyance as fraudulent: Chau- tauque County Sank v. JRisley, 75 Am. Dec. 347. JUDGMENT CREDITOR HAS RIGHT TO HAVE FRAUDULENT CONVEYANCE REMOVED and title cleared up by decree in equity before selling the property under his execution: Cook v. Johnson, 72 Am. Dec. 381. JUDGMENT CREDITOR CANNOT MAINTAIN ACTION TO SET ASIDE ASSIGN- MENT AS FRAUDULENT until after recovery of judgment and return of execu- tion unsatisfied: Gates v. Andrews, 97 Am. Dec. 764. ATTACHING CREDITOR WITH CONSTRUCTIVE NOTICE NOT RELEASED FROM OBLIGATION TO MAKE FURTHER INQUIRY, because he believed the mortgage to have been withheld from record to defraud creditors: Allen v. McCalla, 96 Am. Dec. 56. June, 1886.] BURROWS v. MICKLER. 217 CREDITORS NOT PARTIES TO PROCEEDINGS TO SET ASIDE CONVEYANCE A3 FRAUDULENT cannot avail themselves of the adjudication: Huntlngton v. Jewett, 95 Am. Dec. 788. As TO WHEN VOLUNTARY CONVEYANCE WILL BE HELD FRAUDULENT, see Sedfield v. Buck, 95 Am. Dec. 241; Stewart v. Rogers, 95 Id. 794. ATTEMPTED FRAUDULENT CONVEYANCE OF ALL HIS PROPERTY BY DEBTOR ia a waiver of right to have personal property levied on before real estate; Standtt v. Branch, 93 Am. Dec. 592. BURROWS v. MICKLER. [22 FLORIDA, 572.] RIGHT OF APPEAL is NOT WAIVED BY PAYMENT of the amount of the exe- cution to the sheriff, to avoid a levy. MOTION by defendant in error to dismiss the writ of error. Doggett and Buckman, for the motion. Af. C. Jordan, contra. By Court, RANEY, J. Mickler, the defendant in error, moves to dismiss the writ of error. He had a money judgment against Burrows, and the writ of fi.fa. was in the hands of the sheriff. The real grounds of the motion are, that the judgment and executions have been satisfied and voluntarily paid by Bur- rows, and that this was done before any supersedeas issued or was served. The motion is supported by the following return or certificate made by the sheriff on the execution: "I hereby certify that I received the within execution on the fifteenth day of August, 1885; executed the within writ in the fol- lowing manner: On the twenty-eighth day of January, 1886, the defendant, to avoid levy hereunder, paid to the sheriff $232.04, being the amount of the within judgment, costs, and interest to the fifteenth day of February, 1886; said amount eo paid was paid under the following understanding and with the following agreement: That in the event a supersedeas should issue on or before the fifteenth day of February, 1886, in the within entitled cause, the amount so paid should be returned to said defendant, and in the event no supersedeas should issue on or before the fifteenth day of February, 1886, said amount to be applied to the full satisfaction of this exe- cution. No supersedeas having issued on or before February 15, 1886, so much of said amount as satisfied said judgment as to the judgment, interest, and costs was paid to Doggett 218 BURROWS v. MICKLER. [Florida, and Buckman, attorneys for plaintiff herein; that afterwards defendant's attorney gave notice to the sheriff of the issuance of a supersedeas, since which time the sheriff has done nothing in the premises." It is apparent that the purpose of Burrows, as shown by the above agreement between him and the sheriff, was, that the money put into the sheriff's hands by him should not operate as a payment of the execution until the sixteenth day of Feb- ruary, 1886, nor at all, if the supersedeas should be obtained on or before the fifteenth day of such month. There is no agreement either in form or effect not to take a writ of error. The writ lies without a supersedeas. The case before us is in effect that the defendant in judg- ment and execution has paid the amount necessary to satisfy them. Counsel for the motion has shown no authority to sup- port the idea that such payment by a defendant in execution amounts to a waiver of the right to have the judgment re- viewed by appeal or writ of error. Authorities cited by counsel opposing the motion, as well as all other decisions which we have found in our investigation, are to the effect that such payment does not waive this right: See County Commissioners v. Johnson & Co., 21 Fla. 577; Richeson v. Ryan, 14 111. 74; 56 Am. Dec. 493; Erwin v. Lowry, 7 How. 172; O'Hara v. McConnell, 93 U. S. 150; Gregg v. Forsyth, 2 Wall. 56; Close v. Stuart, 4 Wend. 95; Mayor etc. v. RiJcer, 38 N. J. L. 225; 20 Am. Rep. 386; Scott v. Conover, 10 N. J. L. 61; Randolph v. Bayles, 2 Id. 49; Anony- mous, 3 Id. 469. In County Commissioners v. Johnston & Co., 21 Fla. 577, we held that the performance by respondents of the command of a peremptory writ of mandamus was not a bar to an appeal from the judgment awarding the writ. In Putnam v. Churchill, 4 Mass. 516, it was held even that an agreement not to appeal from a judgment did not preclude the taking of a writ of error. In Richeson v. Ryan, supra, it is said Richeson " was at liberty to pay off the judgment at once, and thereby prevent the accumulation of interests and costs. By so doing, he did not waive his right to remove the record into this court for the purpose of having the validity of the proceedings tested and determined." The motion is denied. PARTY PAYING JUDGMENT AGAINST HIMSELF BEFORE EXECUTION ISSUED does not thereby waive his right of testing its validity in the appellate court: Riclizson v. Ryan, 56 Am. Dec. 493. June, 1886.] O'BRIEN v. VAILL, 219 O'BRIEN v. YAILL. [2 FLORIDA, 627.J LAW IMPOSES ON INNKEEPER EXTRAORDINARY LIABILITY for the protec- tion of the baggage of his guest. He can avoid it only on the grounds of the loss having been occasioned by the act of God, the public enemy, the misconduct of the guest, or of the friend he brings with him. INNKEEPER'S LIABILITY AS SCCH CEASES when his guest pays his bill and departs, announcing that he would be gone a few days, but would leave his baggage to be cared for till his return. The innkeeper's subsequent duty is that of a gratuitous bailee of such baggage, liable only for gross negligence. ACTION against innkeeper for damages for loss of baggage. Verdict for the plaintiff. Defendant appealed. C. P. and J. C. Cooper, for the appellant. Fleming and Daniel, for the appellee. By Court, MC\VHORTER, C. J. On the 26th of March, A. D. 1885, plaintiff, O'Brien, went to the hotel of the defendant, E. E. Vaill, in the city of St. Augustine, and stopped there as a guest. The next day plaintiff paid his bill to the clerk in the office of the hotel, and told him he would be gone for a few days, but would leave his baggage, which consisted of two trunks and a valise, until his return, and which he requested the clerk to take care of for him. Plaintiff left his baggage in his room, locked the door, and gave the key to the clerk. Plaintiff told the clerk that on his return he would board with him. On April 2d plaintiff returned, and again became a guest of the hotel. The plaintiff's baggage had been removed by the proprietor to the main hall of the hotel. On inquiring for his baggage, it was found that one of the trunks had been stolen. It was in evidence that the front door opened into the office, and there was no entrance into the hall besides the entrance through the office; that when the house was not closed there was always some person in charge of the office, and when the hotel doors were closed there was always a watchman on duty. A former servant of the hotel was arrested for the theft, and confessing the crime, told the officer where they could find the trunk. Two hasps had been broken, and the most of the contents carried away. Vaill, the proprietor, re- fusing to pay O'Brien for his damage and loss, the latter brought suit. 220 O'BRIEN v. VAILL. [Florida, The questions presented upon these facts are, 1. Was Vaill, O'Brien having paid his bill and departed from the house, but leaving his baggage, saying he would return, liable to O'Brien under the law regulating the liability of an innkeeper to his guest for the loss of such baggage. Attorney for appellant has called to our attention the case of Adams v. Clem, 41 Ga. 65; 5 Am. Rep. 524. In this case, Mrs. Clem was the guest of the innkeeper, Adams; her trunk was carried to her room, and was marked with her name; she paid her bill, saying that a gentleman, whom she pointed out, would call in ten minutes for it, and bring it to her in the country, to which Adams assented. She left the inn on Monday, and no one called for the trunk until Friday, when it was found to be lost. The court held the innkeeper responsible. The appellant also cites the case of McDonald v. Edgerton, 5 Barb. 560. This decision is partly based on the case of Grinnell v. Cook, 3 Hill, 485; 38 Am. Dec. 663. We think the court misconstrued Justice Bronson in the case of Grinnell v. Cook, supra. In that case, Judge Bronson drew a well-founded distinction in respect of the innkeeper's liability for property left by the guest, as to whether the innkeeper was to receive compensation for keeping the property during the absence of the guest. The guest had left a horse which required feed and attention, for which the innkeeper had a right to charge a reasonable compensation. In the case of McDonald v. Edger- ton, supra, the plaintiff left behind his coat, and there was no compensation agreed on or expected for keeping it. Leaving property for which a compensation for keeping was to be paid continued the relation of innkeeper and guest so far as that property was concerned. We think the current of authority and the weight of reason is opposed to the conclusion reached by the supreme court of Georgia, and the supreme court of New York in 5 Barbour, supra. The law imposes on an innkeeper an extraordinary liability for the protection of the baggage of his guest. He can avoid it only on the grounds of the loss being occasioned by the act of God, the public enemy, the misconduct of the guest, or the friend he brings with him. We can think of no other reason for the imposition of this liability upon the innkeeper than the profit he receives from entertaining his guest. When the trav- eler ceases to be his guest, and the innkeeper ceases to derive a profit for his entertainment, the relation of innkeeper and June, 1886.] O'BRIEN v. VAILL. 221 guest have ceased as such, and, as a consequence, their rela- tive liabilities. O'Brien, when he paid his bill and left the hotel, put an end to the relation of guest to the hotel-keeper: See Miller v. Pee- ples, 60 Miss. 819; 45 Am. Rep. 423 j Grinnell v. Cook, 3 Hill, 485; 38 Am. Dec. 663. The expectation to become a guest again at some other time did not continue the relation of innkeeper and guest. The next question is, What was the relation of the parties after the cessation of the relation of innkeeper and guest, as shown by the evidence? We think it was that of bailor and bailee, and that the defendant was a gratuitous bailee. The statement of the appellant that he expected to return to and board at the hotel could not be considered as a consideration for taking care of the baggage. A gratuitous bailee is liable only for gross negligence. There is nothing proved in the case that will justify us in the conclusion that defendant was guilty of such negligence in opposition to the finding of the referee. The judgment is affirmed. AFTER GUEST HAS GIVEN UP HIS ROOM AT INN, and closed his connection therewith, the landlord is liable only as a common bailee for the guest's bag- gage left behind at the inn: McDardels v. Robinson, 62 Am. Dec. 574, and 67 Id. 720; Miller v. Peoples, 45 Am. Rep. 423, and note. INNKEEPER is BOUND TO KEEP SAFELY AND WELL PROPERTY OF GUESTS, and in case of loss or injury, can absolve himself from liability only by show- ing that the loss or injury was without his fault: Johnson v. Ricltardson, 63 Am. Dec. 369; DunJ)ier v. Day, 41 Am. Rep. 772, and note. INNKEEPERS ARE LIABLE, WITHOUT REGARD TO ACTUAL FAULT OR NEGLECT, for loss of baggage of guest, custody of baggage being assumed as part of ervice: Pettiyrew v. JBarnum, 69 Am. Rep. 212. INNKEEPER, DEFINITION OF: Howtli v. Franklin, 73 Am. Rep. 218. INNKEEPER MAY EXCULPATE HIMSELF by showing that loss did not happen by any neglect of his: Laird v. EicJiold, 71 Am. Dec. 323. Relation of inn- keeper and guest, when exists: Hancock v. Rand, 46 Am. Rep. 112, and note. Innkeeper is not answerable where property is destroyed without his negli- gence by accidental fire: Cutler v. Bonney, 18 Id. 127, and note 130-136. 222 WESTERN UNION TEL. Co. v. HYER BEOS. [Florida, "WESTERN UNION TELEGRAPH COMPANY v. HYER BROTHERS. [22 FLORIDA, 637.] TELEGRAPH COMPANY, LIABILITY OF MEASURE OF DAMAGES. A tele- graph company is liable for damage resulting naturally, and in the usual course of business, from its failure to send or deliver a dispatch correctly and promptly, without requiring the sender to disclose its importance to the company or its agent. CIPHER DISPATCH. It is of no consequence whether the dispatch is in plain English or in cipher, provided such cipher is written in the letters of the English alphabet. ACTION against telegraph company for damages occasioned by delay in delivering cipher message. The jury found a verdict for the plaintiff. Defendant appealed. W. A. Blount, for the appellant. S. R. Mallory, Jr., for the appellee. By Court, McWnoRTER, C. J. Suit was brought by Hyer Brothers, in the circuit court of Escambia County, against the Western Union Telegraph Company, for damages for non- delivery of a cablegram sent to them at Pensacola by their correspondent and agent at Barbadoes. The proof showed that the plaintiffs were merchants and ship-brokers at Pensacola, and that on the twelfth day of Sep- tember, 1883, they received a cablegram from their corre- spondent and agent at Barbadoes, as follows: "Prelate, Tellespont, lambent, speculum, divan, extol, pulpit, rabidy, Greenock, preferred, sluggard, excluded, stevedore, 'scam/ ' slam,' " which, being translated, meant: " We grant you re- fusal for 24 hours. Tellespont, 556 6-100 reg., half hewn, balance deals, 6.15, full freight on beam fillings. U. K., Greenock preferred, 20 gratuity, stevedore excluded. Com- missions in thirds." Hyer Brothers answered the cablegram as follows: "To 'Laurie, Barbadoes. Wagon, extant, knight, sluggard, polygon," which, being translated, meant: "For United Kingdom, full cargo sawn timber at 6 10s. per stan- dard, and 20 gratuity, usual charter." The agent at Barbadoes answered this dispatch, and the answer was received at the office of the Western Union Tele- graph Company in Pensacola, September 14th. It contained June, 1886.] WESTERN UNION TEL. Co. v. HYEB BROS. 223 but one word: " Punctual." By the cipher code used by Hyer Brothers and their correspondent it meant: " We have closed the vessel as per your telegram." It was never deliv- ered to Hyer Brothers. The offer of H. B. for the charter of the vessel was based on an offer made to them by A. M. Mc- Millan, of Pensacola. Not receiving an answer to their dispatch, and thinking their offer was not accepted, they told McMillan that" the offer was declined, and he secured another vessel. On October 2d the vessel arrived at Pensacola, bringing a letter from their agent at Barbadoes containing a copy of the telegram, which had been sent as aforesaid to H. B., but not delivered; also a charter-party which their agent at Barbadoes had signed for them in accordance with their offer. They had to recharter the vessel at a loss. The court instructed the jury to find their verdict as a spe- cial verdict, upon which, if in favor of the plaintiff, it should enter judgment for nominal damages, or for the amount of damages as found by the jury, as it might thereafter be ad- vised. The jury returned a verdict for plaintiffs for $618.90, and the said court, after being advised, entered judgment in favor of the plaintiffs and against the defendant for said sum. The defendant alleges here as error that the court erred in rendering judgment for other than nominal damages. This question has never before been presented for adjudica- tion in this state. The courts in New York, Minnesota, Maryland, Wisconsin, Massachusetts, Nevada, and Maine, following the case of Hadley v. Baxendale, 9 Ex. 341, hold that only nominal dam- ages can be recovered from the company undertaking to send the telegram, unless the sender should inform the operator of the special circumstances which constituted its importance, and the need of its correct and prompt transmission. The case of Hadley v. Baxendale, supra, was this: The plain- tiffs, owners of a steam-mill at Gloucester, had a shaft broken, and desiring to have another made, they left the broken shaft with the defendant, a common carrier, to be carried to a foun- dry at Greenwich to serve as a model for a new one. At the time of making the contract, the defendant's clerk was in- formed that the mill was stopped, and that the plaintiffs desired the broken shaft to be sent immediately, but were not informed of the special purpose for which the broken shaft 224 WESTERN UNION TEL. Co. v. HYER BROS. [Florida, was to be forwarded. The carriers told the proprietors of the mill that they could deliver the shaft at Greenwich at a cer- tain time. They failed to deliver it within the time, and a delay was caused in the making of a new one, and a conse- quent delay in starting the mill. The court said: " We think the proper rule in such a case as the present is this: Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be either such as may fairly and substantially be considered as arising natu- rally, i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be sup- posed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiff to the defendant, and thus known to both parties, the damages resulting from the breach of such a contract which they would reasonably contemplate would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communi- cated. But, on the other hand, if those special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contem- plation the amount of injury which would arise generally, and in the great multitude of cases, not affected by any special circumstances, for such a breach of contract. For had the special circumstances been known, the parties might have ex- pressly provided for the breach of contract by special terms as to the damage in that case, and of this advantage it would be very unjust to deprive them. The above principles are those by which we think the jury ought to be guided in esti- mating the damages arising out of any breach of contract." All the cases above referred to rely upon the authority of this case of Hadley v. Baxendale, 9 Ex. 341, and are decided upon the theory that the principles of law regulating the conduct of common carriers applies equally to the transmission of mes- sages by the electric telegraph system. The business of one is to transport from one locality to another some tangible object of weight and dimension. Experience does not suggest, in such a transaction, any other liability than compensation for its value, if lost or destroyed in the transportation, or such June, 1886.] WESTERN UNION TEL. Co. v. HYEB BEOS. 225 damages for its delay as the object itself might suggest. The business of the other is the transmission, from one to another and from one locality to another, of information or intelligence, nothing in itself, but as the basis and groundwork that is to influence the conduct of others, is in this respect of the very first importance. One is limited to the transportation of tan- gible things; the other to the transmission of the intangible. There is no similarity in the services to be performed, in the nature of the things to be transported or transmitted, or the purposes to be effected, and as a consequence, none as to the measure of damages for failure to perform their respec- tive agreements. The decision in Hadley v. Baxendale, 9 Ex. 341, was proper, and suited to the facts before the court; but an attempt to extend it to such cases as this would be productive of great injustice. The telegraphic invention has made the system the means of communication between all civilized countries on the globe for a large part of the transactions and communications that prior to its invention were conducted by writing or by special messenger. No man can enumerate the vast number of sub- jects of treaty and intercourse that the complicated relations of mankind require its agency to accomplish. It can safely be said, however, that the larger part of all messages sent are of a commercial or business nature, which suggest value; the requirements of friendship or pleasure can await other means of less celerity and less expense. If this be true, why should the law assume that as a rule all messages sent over it are unimportant, and that an important one is an exception, of which the operator is to be informed? Whatever may be the rules of this particular defendant company, if they have any, there are none set forth in the record; whether, there- fore, its rules are reasonable, or whether it can limit its liability by proper rules when shown to have been known to its patron, is in no sense involved in this opinion. The common carrier charges different rates of freight for different articles, according to their bulk and value and their respective risks of transportation, and provides different meth- ods for the transportation of each. It is not shown here that the defendant company had any scale of prices which were higher or lower as the importance of the dispatch was great or small. It cannot be said, then, that for this reason the operator should be informed of its importance, when it made An. ST. REP., VOL. L 16 226 WESTERN UNION TEL. Co. v. HYEB BROS. [Florida, no difference in the charge of transmission. It is not shown that if its importance had been disclosed to the operator that he was required by the rules of the company to send the mes- sage out of the order in which it came to the office, with refer- ence to other messages awaiting transmission, that he was to use any extra degree of skill, any different method or agency for sending it, from the time, the skill used, the agencies employed, or the compensation demanded, for send- ing an unimportant dispatch, or that it would aid the operator in its transmission. For what reason, then, could he demand information that was in no way whatever to affect his manner of action, or impose on him any additional obligation? It could only operate on him persuasively to perform a duty for which he had been paid the price he demanded, which in con- sideration thereof he had agreed to perform, and which the law in consideration of his promise and the reception of the consideration therefor had already enjoined on him. The sys- tem of telegraphy, founded as.it is on a comparatively recent discovery of the practical capabilities of a well-known ele- mentary force, whose existence had hitherto made itself known more by its power of destruction and the dread of its visitations than by manifesting utility for the varied purposes of man, and having for its mission the almost instantaneous communication of ideas between persons widely separated, as to distance, unlike any industry or enterprise that had ever been in use before, may justly be considered and treated as standing alone, a system unto itself. The nearest approach to any similar enterprise is the sys- tem of carrying letters by mail, but as this has been taken in charge and performed by the United States government since its inception, and its acts or omissions cannot be made subjects of judicial inquiry, we can find no precedent in this country to aid in the solution of the questions that are dividing the courts. The same may be said as to want of precedents in that country to which we have so often and so successfully looked for assistance in other disputed questions. Prior to the reign of James L, when the post was first estab- lished in England, letters were sent by a messenger specially hired for the purpose, or intrusted to the honor of some way- farer who chanced to be going to the place where the letter was desired to be sent. Butchers and drovers whose business of buying cattle caused them to visit various parts of the king- June, 1886.] WESTERN UNION TEL. Co. v. HYEB BROS. 227 dom were the principal carriers of letters, as late as the fif- teenth century. Any attempt to apply to such a novel system legal principles adapted to pursuits and occupations which are dissimilar in their nature, and designed for the accom- plishment of different purposes, must naturally result in fail- ure and confusion. A recognition by the courts of this truth, and an application from time to time to its conduct of such rules and regulations as common sense may suggest, as fitted to its peculiar nature and purposes, without reference to sys- tems that are not similar and principles that are not analogous, is the only method preserving the law regulating its operation from contradictions and perplexities. Similar difficulties have previously arisen in other branches of the law, when from their novelty, and a failure of applicable precedents, the courts, probably from fear of the hazard of framing new rules, or misled by a seeming analogy, have attempted to apply to such legal novelties long-used principles of law, and to analogize the new to some old system with which they were familiar. This disposition of the courts, or it may be said of the human mind, for it exists equally elsewhere, is very forcibly and con- clusively shown in the effort, when the tenure of partners in the joint property of the partnership was a new question in the English courts, to liken it to a joint tenancy or a tenancy in common. This was the view, says Mr. Parsons, that was taken in all the early books. They all had the element of joint ownership of property, but in all other respects were dif- ferent and independent, and the law for each should be sought for in itself. When this species of joint interest and owner- ship came under the cognizance of the courts of England, it was new to them, and new to the law of England, and it was perhaps unavoidable that they who administered the law should have sought to bring this new topic within the rules and principles of these kinds of joint ownership which were well known: Parsons on Partnership, pp. 2, 3. Much of the confusion, says the same learned author, existing to-day in suits and levies of a private creditor against a partner person- ally indebted to him is due to the inability of the law of part- nership to clear itself of the last remaining influences of the old notion that partnership was but one form of tenancy in common: Id. 352, 353. The supremo court of Alabama, in the case of Daughtery v. American Union Telegraph Company, at its December term, 228 WESTERN UNION TEL. Co. v. HYEB BROS. [Florida, 1883, reported in the Alabama Law Journal, May, 1884, 75 Ala. 168, 51 Am. Rep. 435, and the supreme court of Cali- fornia, in the case of Hart v. Western Union Telegraph Company, April term, 1885, 66 Cal. 579, 56 Am. Rep. 119, have laid down a doctrine more harmonious with justice, and more applica- ble to the peculiar characteristics belonging to the system of telegraphy. They hold that a telegraph company is liable for damage resulting naturally, and in the usual course of busi- ness, from its failure to send or deliver a dispatch correctly and promptly, without requiring the sender to disclose its im- portance to the company or its agent. It is of no consequence whether the dispatch is in plain Eng- lish or in cipher, provided such cipher is written in the letters of the English alphabet The judgment of the circuit court is affirmed. RANEY, J., dissented, and based his views upon the judgment of the court of exchequer in the case of Hartley v. Baxendate, 9 Ex. 341, deoided in the year 1854, when the electric telegraph was in its earliest infancy. The facts disclosed in that action are stated in the opinion of the court in the principal case. The plaintiff was allowed special damages occasioned by the delay in delivering a mill-shaft. A rule nisi was obtained for a new trial, and after argument before the court in bank was made absolute, on the ground that the damages were too remote, and that the special circum- stances under which the contract was actually made were not communicated by the plaintiffs to the defendant. " For," the court says, "had the special circumstances been known, the parties might have especially provided for the breach of contract, by special terms as to the damages in that case; and of this advantage it would be very unjust to deprive them." In applying the principles laid down to the case, the court says: "We find that the only cir- cumstances here communicated by the plaintiff to the defendant at the time the contract was made were, that the article to be carried was the broken shaft of a mill, and that the plaintiff was the miller of that mill. But how do these circumstances show reasonably that the profits of the mill must be stopped by an unreasonable delay in the delivery of the broken shaft by the carrier to the third person? .... Here, it is true that the shaft was ac- tually sent back to serve as a model for a new one, and that the want of a new one was the only cause of the stoppage of the mill, and that the loss of profits really arose from not sending down the new shaft in proper time, and that this arose from the delay in delivering the broken one to serve as a model. But it is obvious that in the great multitude of cases of millers send- ing off broken shafts to third persons by a carrier, under ordinary circum- stances, such consequences would not in all probability have occurred, and these special circumstances here were never communicated by the plaintiff to the defendant The judge ought therefore to have told the jury that, upon the facts then before them, they ought not to take the loss of profits into consideration at all in estimating the damages. " The decision in ffadley v. Baxerulale overrules that in the case of Borro- June, 1886.] WESTERN UNION TEL. Co. v. HYER BROS. 229 daile v. Brunton, 8 Taunt. 535, where damages of a similarly remote charac- ter were allowed, so that the decision of the majority of the court in the principal case would seem to be rather the revival of an old rule than the creation of a new one. The principle that damages may be recovered for loss of profits had been recognized in many English cases before Hadley v. Baxendale, among which may be cited Kettle v. Hunt, Bull. N. P. 78 a; Brandt v. Bowlly, 2 Barn. & Adol. 932; Ward v. Smith, 11 Price, 19; Waters v. Towers, 8 Ex. 401; and Bodley v. Reynolds, 8 Q. B. 779. Mr. Justice Raney, in his dissenting opinion, has followed the view throwing on the sender of the telegram the burden of communicating its subject-matter and importance to the telegraph company before making it liable in damages for delay in transmittal of the message (citing a number of authorities in sup- port), thus giving it an opportunity of making a special charge for, and taking special care in, the transmission of the dispatch, rather than the view which would impose upon the telegraph company the onus of requiring the sender to make the necessary communications as to the dispatch, and pay an increased tariff, if he wish to preserve the right to recover substantial dam ages in case of any delay in the receipt of the dispatch. The rule of the common law would seem to be that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation with respect to damages as if the contract had been per- formed: Robinson v. Harman, 1 Ex. 855. In the case of Hart v. Western Union Tel. Co., 66 Cal. 579 (cited in the controlling opinion in the principal case), the judges differed in opinion; and it is the opinion of the minority which is in accord with the opinion of the majority in the principal case. The case of DaugJdery v. American Union Tel. Co., 75 Ala. 168, also criti- cises the ruling in Hadley v. Baxendale, and seeks to limit it to the particular facts of that case. The decision in Daughtery v. American Union Tel. Co., evpra, is a unanimous one, and contains a very copious collection of the au- thorities. TELEGRAPH COMPANY is LIABLE, NOT ONLY FOR COST OF SENDING MES- SAGE, but also for the natural and proximate damages resulting from the breach of contract: Parks v. Alia California Telegraph Co., 73 Am. Dec. 589. This is a California case, decided in 1859, when telegraph companies were held in that state to be common carriers; but since 1874, by section 2168 of the California Civil Code, such companies are not common carriers, but are required by the statute to "use' great care and diligence in the transmission and delivery of messages." DAMAGES OCCASIONED BY DELAY IN TRANSMITTING a dispatch, and which caused the sender to lose priority of an attachment, are not too remote: Paris v. Alta California Telegraph Co., 73 Am. Dec. 589. TELEGRAPH COMPANY MUST SEND VERY MESSAGE PRESCRIBED; and for a failure to do so is liable in damages to the receiver of the message, and uch liability is not altered by the fact that the sender did not insure or have the message repeated: New York and Washington Printing Telegraph Co. T. Dryburg, 78 Am. Dec. 338. CONDITION LIMITING RESPONSIBILITY, UNLESS MESSAGE REPEATED, is just and reasonable; and a sender, with knowledge of such condition, is to be re- garded aa having sent the message at his own risk: Camp v. Western Union Telegraph Co., 71 Am. Dec. 461. 230 WESTERN UNION TEL. Co. v. HYER BROS. [Florida. TELEGRAPH COMPANY NOT LIABLE FOR Loss CONSEQUENT upon failure to end cipher message, unless purport of message communicated to company: United States Telegraph Co. v. Gildersleve, 96 Am. Dec. 619. As TO WHEN TELEGRAPH COMPANY is GUILTY OF GROSS NEGLIGENCE AND LIABLE IN DAMAGES for failure to transmit message, and measure of dam- ages: United States Telegraph Co. v. Wenger, 93 Am. Dec. 751. SECOND COMPANY CANNOT AVAIL ITSELF OF CONDITIONS IN BLANK or FIRST COMPANY limiting liability: Squire v. Western Union Telegraph Co., 93 Am. Dec. 157. SPECIAL LIMITATION OF LIABILITY will not protect company from conse- quences of gross negligence: Waun v. Western Union Telegraph Co., 90 Am. Dec. 395. COMPANY BOUND TO TRANSMIT MESSAGE IN ORDER OF TIME OF RECEIPT; but private dispatches must give way to public communications: Western Union Telegraph Co. v. Ward, 85 Am. Dec. 462. TELEGRAPH COMPANY is RESPONSIBLE FOR ANY Loss OR INJURY which results from its failure to transmit message: Birney v. New Tort and Wash- ngton Printing Telegraph Co., 81 Am. Dec. 607. CASES THE SUPEEME COTJKT KANSAS. MITCHELL v. ATEN. f37 KANSAS, 83.] SERVICE BY PUBLICATION COMPLETED PRIOR TO DATE OF JUDGMENT give* jurisdiction. JUDGMENT PREMATURELY ENTERED, as where the summons has been served but the time allowed by law to plead has not expired, is irregular merely, and not void. IRREGULAR JUDGMENT CANNOT BE COLLATERALLY ATTACKED, though it may be set aside on motion or by some appropriate appellate proceeding. PRIORITY IN RECORDING CONVEYANCES OF REAL ESTATE protects only inno- cent and bona fide purchasers and holders. AGENT WILL NOT IN EQUITY BE PERMITTED TO PROFIT by his negligence toward his principal. AGENT WILL NOT BE PROTECTED AS AGAINST HIS PRINCIPAL who is seeking to foreclose a mortgage on land which such agent has purchased from an innocent holder of a deed therefor, when the claim to priority under uch deed is based on the negligence of the agent in delaying the record- ing of such mortgage. ACTION to quiet title to real estate. Judgment for plaintiff. A. J. Utky, for the plaintiff in error. /. W. Lord, for the defendant in error. By Court, HORTON, C. J. The facts in this case are substan- tially as follows: On November 23, 1858, William J. Turner was the owner of the real estate in controversy; upon that day he executed a mortgage upon the real estate to Henry Aten, to secure the payment of two hundred dollars, which mortgage was recorded on December 2, 1858; upon the same 281 232 MITCHELL v. ATEN. [Kansas, day he conveyed to John N. Jefferson the real estate by war- ranty deed, which was recorded November 29, 1858. Henry Aten assigned his mortgage to C. M. Aten, who brought an action to foreclose the same, and recovered judgment thereon October 13, 1862. In that action William J. Turner and Henry Aten were made defendants. Under a sale upon the foreclosure of the mortgage, C. M. Aten obtained a sheriff's deed to the real estate, on December 12, 1863. David T. Mitchell obtained a warranty deed of the real estate from John N. Jefferson, on March 28, 1884. C. M. Aten filed his petition against David T. Mitchell for the purpose of quieting title in himself to said real estate. Upon the trial the court rendered judgment for the plaintiff, as prayed for. Mitchell excepted, and brings the case here. The foreclosure proceedings in the -action of C. M. Aten against William J. Turner et al. were received in evidence, without objection. After the argument of the case the plaintiff moved to strike from the evidence this record, for the reason that it was not signed by the district judge. This motion was sustained, and this ruling is complained of. The record was offered by Mitchell to prove that the judgment of foreclosure under which Aten claimed title was absolutely void. This upon the ground that the judgment was taken by default, on October 13, 1862, when defendants had twenty days after Octo- ber 25, 1862, in which to appear and answer. It is not necessary for us to pass upon the question whether the district court erred in refusing to consider as evidence the record of the foreclosure case of A ten v. Turner et al. Turner was notified by publication to appear and answer the petition on or before twenty days after October 25, 1862. The service of publication was completed prior to October 13th, the date of the judgment. Judgment was not rendered, therefore, until several days after service. Jurisdiction having been obtained, the fact that the judgment was rendered sooner than it should have been does not make the judgment void: a judgment thus rendered is irregular only. It might have been set aside by motion, or upon proceedings in error, but the judgment is not vulnerable to a collateral attack: Code, sec. 569; Freeman on Judgments, sees. 119, 126, 135; Town of Lyons v. Cooledge, 89 111. 529. The next complaint is, that the findings of fact of the trial court do not support the conclusions of law. It is said that as the mortgage and the deed were both executed and acknowl- July, 1887.] ^ MITCHELL v. ATEN. 233 edged November 23, 1858, and as there is no reference in the mortgage to the deed, or in the deed to the mortgage, it must be presumed, in the absence of proof to the contrary, that the grantees acted in good faith; and as it appears that the deed was recorded November 29, 1858, and the mortgage December 2, 1858, the prior record of the deed to Jefferson gave him the superior equity, and therefore that the mortgage never had any validity as to Jefferson, or to Mitchell claiming under him. If we were to presume that the mortgage and deed were delivered at the same time, it would necessarily follow that the grantees knew of the existence of the two instruments, and it would be a natural conclusion to say that Turner gave the mortgage first, and then sold the land to Jefferson with the understand- ing that he should pay the mortgage, as his warranty would oblige him to do. This view would be in favor of holding that Turner acted in good faith to all parties. But aside from this, the finding of the trial court that Mitchell was the agent of Aten in taking the mortgage from Turner, November 23, 1858, and was also his agent in recording the same, fully sustains the judgment rendered. The statute relating to the filing and recording of conveyances of real estate protects no one but in- nocent and bona fide purchasers and holders. If it be true that Jefferson had the superior equity on account of the priority of the record of his deed, he obtained this equity by the negligence or bad faith of Mitchell. It was the duty of Mitchell, as the agent of Aten, to have filed for record the mortgage within a reasonable time after it came into his possession. If Mitchell had done this, the mortgage would have been recorded within a day or two after November 23, 1858. It was not recorded, through the fault of Mitchell, until December 2, 1858, three days after the deed was of record. Mitchell cannot be per- mitted in a court of equity to profit by his own wrong against his principal. It is a sound principle that he who prevents a thing from being done shall not avail himself of the non- performance ho has occasioned. We are not passing upon the rights or equities of Jefferson; therefore it is immaterial whether he had the superior equity in the real estate, or not. Mitchell, although he derived his title from Jefferson, cannot be protected by the priority of the record, because such priority is founded upon his own negli- gence or wrong. He should suffer for this negligence or bad faith, and not his principal. The judgment of the district court will be affirmed. 234 BATES v. WIGGIN. . [Kansas, JUDGMENT MAY BE ATTACKED COLLATERALLY, where the return of ser- vice of summons, as appears from the record, was insufficient to confer juris- diction, and there was no finding of the court from which a proper service or appearance could be inferred: Clark v. Thompson, 95 Am. Dec. 457, and note 461. JURISDICTION OF PERSON OF DEFENDANT may be obtained by service by publication: Hahn v. Kelly, 94 Am. Dec. 742. Presumption in favor of juris- diction, when judgments of courts of record are attacked collaterally: Id., and extended note 765. BATES v. WIGGIN. [37 KANSAS, 44.] ORAL MORTGAGE. Verbal agreement by one with his surety that property purchased with money raised by note signed by surety shall become the property of such surety until such note is paid, is, in effect, an oral mortgage. ORAL MORTGAGE OF CHATTELS NOT ACCOMPANIED BY THEIR DELIVERY is valid as between the parties. RECEIVER TAKES PROPERTY SUBJECT TO EXISTING EQUITIES AND LIENS. SURETY MAY, AFTER MATURITY OF DEBT, for the payment of which he is responsible, replevy goods mortgaged to secure him as surety, and may foreclose such mortgage, although he has not actually paid such debt. REPLEVIN by Frank A. Bates to recover of J. A. Wiggin, personally, and as receiver of H. B. Clark, certain personal property, consisting of hay and grain, amounting in Talue to $1,439.75. H. B. Clark, in the fall of 1884, for the purpose of raising money with which to buy feed for certain live-stock then in his possession, made an arrangement with said Bates to become his surety on certain notes. The money to be obtained from such notes was to be used by said Clark in the purchase of feed, which, when bought, should become and remain the property of said Bates until such notes should be fully paid. Notes to the amount of two thousand five hundred dollars were given as agreed, with the proceeds of which feed was purchased, a portion of which was by said Clark fed out to the said stock until January 5, 1885, when J. A. Wiggin, as receiver in an action brought against Clark by one 0. A. Burton, took pos- session of both the feed remaining and the stock, which pos- session he still retains. At the time the notes were given, both Bates and Clark were insolvent. Defendant demurred to plaintiff's evidence. The court sustained the demurrer, and directed the jury to render a verdict in favor of defend- ant. Judgment for defendant. New trial denied. Plaintiff appeals. July, 1887.] BATES v. WIGGIN. 235 Lloyd and Evans, for plaintiff in error. J. B. Johnson and J. D. McFarland, for defendant in error. By Court, HOLT, C. The first question that presents itself is, Was the contract between Bates and Clark a conditional sale, or was it a mortgage on the property in controversy? The testimony is not uniform concerning the agreement. Some of the witnesses testify that the title should pass, and the property become absolutely the property of Bates at once. They all agree that the title to the property should be in Bates until the notes were paid to the bank, but there is some testimony showing that the title to the property remaining should revert to Clark upon the payment of the notes at once, and without any formal transfer. The testimony shows that Clark fed his stock out of a part of the property pur- chased. The writer of this opinion is inclined to believe that the agreement constituted a mortgage, yet there was testimony enough introduced tending to show that it was a conditional sale, so that it might have been a proper question for the jury to determine whether the transaction was a mortgage or a sale: Goodwin v. Kelly, 42 Barb. 194. If it had been a sale of the property, then certainly Bates, the owner of the same, could maintain his action for the* possession of it. The defendant contends that if it was an oral mortgage it would be void without an actual delivery of the property to Bates. We do not believe that claim is tenable. There is a distinction between mortgages and pledges, but there is no dis- tinction nor reason for a distinction between oral and written mortgages in this respect. There is no provision in our stat- utes, as there is in some states, that the sale of personal prop- erty of a certain value, unaccompanied by delivery, shall be void unless a memorandum of the sale in writing be made and signed by one of the parties thereto. There is no question of purchaser or creditor arising in this action under the evidence brought here. It is simply a controversy between Bates and the receiver of H. B. Clark. Such receiver took the property of Clark subject to all existing equities and liens, and has no greater rights than Clark himself would have against Bates, and can interpose no defense that Clark could not: In re North American Gutta Percha Co., 17 How. Pr. 549; Lorch v. Avltman, 75 Ind. 162; High on Receivers, sec. 138. The testimony in this action tends to show that this trans- action was entered into in good faith, and that the conditional 236 BATES v. WIGGIN. [Kansas, sale or mortgage, whichever it may be, was given upon a suf- ficient consideration; and when inquired into between the parties themselves, or between parties having no greater or different rights, we know of no rule, or reason for a rule, that would make delivery indispensable as between them any more than under a written mortgage: Jones on Chattel Mortgages, sec. 2; Morrow v. Turney's Adm'r, 35 Ala. 131. If a sale of chattels, not in writing, is valid without delivery, we know of no reason why an oral mortgage should be void between the parties thereto, without delivery. In the view we take of this case, it is of very little impor- tance whether the transaction was a conditional sale or a mort- gage. If it was a mortgage, it was a transaction to secure $2,500; and the statement of the values in the affidavit of the plaintiff shows the total value of the property claimed to be only $1,439.75, much less than the amount sought to be secured. It is contended that if this transaction is a mortgage, the plaintiff could not maintain an action of replevin for this property until he had paid the notes, or some part thereof, upon which he was surety. Whatever the general rule may be, we believe where the surety has a mortgage on the prop- erty of his principal to secure him for signing his principal's notes, after the maturity of the debt, he is not bound to wait until he has actually paid as surety, but may have the mort- gage foreclosed at once; and where the principal is insolvent, he may retain any funds in his hands to apply to the discharge of his liability. The purpose of this contract between Bates and Clark was to hold Bates harmless against loss or damage by reason of his signing Clark's notes at the bank as surety. At the com- mencement of this action he was legally liable on the notes, and was entitled to obtain possession of the property given him to save him harmless, because he signed the same: Brandt on Suretyship and Guaranty, sec. 193; Baylies on Sureties and Guarantors, 352; De Cottes v. Jeffers, 7 Fla. 284; Succes- sion of Montgomery, 2 La. Ann. 469; Daniel v. Joyner, 3 Ired. Eq. 513. It is recommended that the judgment of the court below be reversed. MORTGAGE LIEN UPON REAL ESTATE CANNOT BE CREATED BY AGREE- MENT WHICH is WHOLLY VERBAL: Porter v. Muller, 53 Cal. 677. July, 1887.] STONE v. FRENCH. 237 PAROL MORTGAGE. When it was intended that a vendor's lien shall be- come a mortgage on property sold, equity will so regard it, although there has been no technical mortgage: Whiting v. Eichelberger, 16 Iowa, 422. EQUITY WILL ENFORCE PAROL MORTGAGE. Where it is agreed that a lien shall exist on real or personal property, equity will decree that such agreement, as against the party himself, or one taking under him with notice, raises a trust: Whiting v. Eichelberger, 16 Iowa, 422. AGREEMENT TO EXECUTE MORTGAGE- Money was advanced to defendant upon an agreement to execute a mortgage therefor, with an immediate power of sale. Defendant, after having received the money, refused to give the security. The court ordered that he should be held to the letter of his agree- ment: Herman v. Hodges, L. R. 18 Eq. 18. ORAL MORTGAGES. Oral agreements, the general substance of which is, that the creditor may retain or sell certain personal property of the debtor, and apply its proceeds to the satisfaction of a debt, may be very properly styled oral or verbal mortgages, and their validity and binding force as be- tween the parties thereto seem to be very generally conceded: Rees v. Coats, 65 Ala. 256; Loyd v. Currin, 3 Humph. 462; Couchman v. Wright, 8 Neb. 1; Bank of Rochester v. Jones, 4 N. Y. 497; 55 Am. Dec. 290; Bradwell v. Roberts, 66 Barb. 433; Ackley v. Finch, 7 Cow. 290. No particular or set form of words is essential to the creation of such mortgage: Glover v. Mc~ Oiloray, 63 Ala. 508. In all those states where a change or delivery of pos- session is essential to the existence of a valid written mortgage, it must neces- sarily be an accompaniment of a valid oral mortgage whenever it is sought to be enforced against any person other than the original mortgagor, and those acquiring under him, either by voluntary transfer or with notice of the existence of such mortgage: Ceas v. Bramley, 18 Hun, 187. When possession is delivered under an oral mortgage of personalty, the legal tjtle vests in the mortgagee: McTagyart v. Rose, 14 Ind. 230; Furgeson v. Union Furnace Co., 9 Wend. 345. If the mortgagee has never had the possession of chattels orally mortgaged to him, he may, even in those states where he is not regarded as vested with the legal title, maintain an action on the case against one who, having notice of such mortgage, converts such chattels to his owu use: Rees v. Coats, 65 Ala. 256. STONE v. FRENCH. [87 KANSAS, 145. J DELIVERY. Deed of real estate, acknowledged by grantor, containing the words "signed, sealed, and delivered in the presence of S. Michaels," placed in an envelope in grantor's table-drawer, with directions as to recording indorsed on envelope, is neither delivered to the intended grantee nor to any one else, and it conveys no title. INTENTION TO MAKE FUTURB DELIVERY o DEED AND CONVEYANCE OF LAND AT DEATH of grantor is not a delivery of such deed, and passes no interest in the land. DIED NEITHER DELIVERED NOR RECORDED by grantor during his lifetime is void. VOID INSTRUMENTS CANNOT BE RECORDED legally. RECORDING VOID DEED GIVES IT No VALIDITY, and a bona fide purchaser, under such void deed, acquires no title, and can convey none. 238 STONE v. FRENCH. [Kansas, ACTION for partition of land, brought by Luther C. French against John Stone and others. Buck and Feighan, and Cox and Stratton, for the plaintiff in error. Hutchings and Keplinger, for the defendants in error. By Court, VALENTINE, J. This was an action for the parti- tion of two hundred acres of land in Neosho County, brought in the district court of that county on October 16, 1884, by Luther C. French against John Stone and others. The case was tried before the court and a jury, and judgment was ren- dered for the partition of the property, giving to the plaintiff, Luther C. French, one seventh thereof, and to the defendant John Stone one seventh thereof, and to the other defendants the remainder thereof. To reverse this judgment, the defend- ant John Stone brings the case to this court, making the plaintiff, Luther C. French, and all the defendants except himself, defendants in error. It appears that on March 1, 1878, and prior thereto, the property in controversy belonged to Francis B. French, although he had not yet entirely paid for the same. At that time he formed the intention of giving this land at his death to his brother, Dudley S. French, unless he should sell the same during his lifetime. On March 1, 1878, he wrote a letter to his brother, Dudley S. French, in which he stated, among other things, the following: " In case I should drop off, you can take possession of the land, and do with it as you please. When I have paid the land out, if not sold, I will make a deed to it to you, inclose it in an envelope, direct it to you, to be mailed in event of death, which would make it sure to you without expense or trouble." Nearly one year afterward, and on February 18, 1879, Fran- cis B. French signed a warranty deed for the property to Dud- ley S. French, and on April 4, 1879, acknowledged the deed before S. Michaels, a justice of the peace in said county. The deed also contained the words "Signed, sealed, and delivered in the presence of S. Michaels." The deed, however, never was in fact delivered. On August 2, 1879, Francis B. French died, in the possession of and owning the land in controversy. During all this time he was a single man, and did not leave at his death any wife or child, or father or mother, but left several brothers, including the plaintiff, Luther C. French, and Dudley S. French. It does not appear that any person, July, 1887.] STONE v. FRENCH. 239 except Michaels and Francis B. French, ever saw the afore- said deed, or had the slightest knowledge thereof, until about half an hour before French died, when it was found by Wil- liam Welch, inclosed in an envelope with a letter, in a cigar- box, in the drawer of the table, in the house occupied as a residence by French. The following words were indorsed upon this envelope: "This deed to be placed in the recorder's office at Erie, Kansas, for record, and the accompanying letter to be mailed as per direction thereon." At the time this deed was found, French was speechless and unconscious, and re- mained in that condition until he died, about half an hour afterward. Welch immediately telegraphed to Dudley S. French, who resided at Clinton, Illinois, and French came to Kansas, arriving on August 4, 1879, at the place where Fran- cis B. French died. Shortly afterward, Welch delivered to French the aforesaid deed. This is the first time that French ever saw the deed; and he never heard of it until after the death of Francis B. French. On August 6, 1879, Dudley S. French filed the deed for record in the office of the register of deeds of Neosho County. Dudley S. French then took posses- sion of the land, and remained in the possession thereof until he sold the same to John Stone, the plaintiff in error. Dudley S. French was a brother-in-law to Stone, and for a time lived at his house. He was weak in body and in mind, and a part of the time could scarcely dress himself. On June 10, 1882, he sold and conveyed this land by warranty deed to Stone, for the expressed consideration of two thousand dollars, but for the real consideration of only eight hundred dollars. He was a single man at the time. The land was worth about three thousand dollars. Stone, at the time, did not know that there was any infirmity in the title of Dudley S. French; and for the purposes of this case, he must be considered as in fact a bona fide purchaser, whatever the law may be. The deed from Dudley S. French to Stone was recorded on June 16, 1882. At some time during the summer of 1882, Stoue took possession of the land, and has remained in the possession thereof ever since. This action was commenced on October 16, 1884. All the heirs at law of Francis B. French, includ- ing the plaintiff below, Luther C. French, and Dudley S. French, were made parties to the action; so, also, were the defendant, John Stone, and S. Michaels and others. Dudley 8. French died on January 7, 1885, after this action was com- menced, but before the trial was had. 240 STONE v. FRENCH. [Kansas, It is conceded by all parties that John Stone is entitled to one seventh of the land in controversy, that amount being admitted to be the share inherited by Dudley S. French from Francis B. French; but Stone claims that he is entitled to all the land; and whether he is entitled to only one seventh thereof, or to all the land, is the only substantial question involved in this case. The principal questions presented by counsel to this court are as follows: 1. Was the deed from Francis B. French to Dudley S. French ever delivered so as to make it a valid deed? 2. If not, then is John Stone, for any reason, entitled to more than one seventh of the land in controversy? There is no room for even a pretense that the deed was ever in fact delivered to Dudley S. French, or to any one else; and there is scarcely any room for even a pretense that it was ever in law delivered. The only grounds upon which it is claimed that it was ever delivered are the letter of Francis B. French to Dudley S. French, dated March 1, 1878, the indorsement on the envelope found in the cigar-box on August 2, 1879, and the words contained in the deed, to wit, " Signed, sealed, and delivered in the presence of S. Michaels." Now, it may be conceded that these things constitute some evidence of a delivery, but when it is shown conclusively by the other evidence that there was no delivery, these things can have no force. Besides, the letter itself shows that there was no present intention on the part of Francis B. French of con- veying the land or delivering a deed to Dudley S. French. And it also shows that Francis B. French contemplated that he might before his death sell the land to some other person. Francis B. French never had any intention of conveying the land immediately, but it was always his intention, unless he sold the land, to retain the title thereto in himself as long as he lived, and to let the property go to Dudley S. French only after his death. This does not constitute a delivery of a deed or a conveyance of the land. Of course there are cases where it is not necessary that there should be any actual manual de- livery of the deed. A recording of the deed is sometimes considered as a delivery. So, also, is a delivery to a third per- son sometimes considered as a delivery to the grantee. And where a deed is executed by a father to an infant child, with the intention that the title shall immediately pass and vest in the child, and the father retains the custody of the deed as the natural guardian of the child, the title may pass. Bat July, 1887.J STONE t>. FRENCH. 241 none of these cases is the present case; nor is the present case anything like them. Dudley S. French was not an infant, and although he was a man of weak mind, yet he was not non compos mentis. The deed was not delivered or recorded by Francis B. French, nor during his lifetime, and he never had any intention that the title should pass until after his death. The deed never was a deed in law, and Dudley S. French never had any right to it; nor had he any right to have it recorded ; nor did it convey any title, interest, or estate to him. It was not merely voidable, but it was absolutely void. The court of appeals of New York uses the following language: "A rule of law, by which a voluntary deed executed by the grantor, afterward retained by him during his life in his own exclusive possession and control, never during that time made known to the grantee, and never delivered to any one for him, or declared by the grantor to be intended as a present opera- tive conveyance, could be permitted to take effect as a trans- mission of the title, is so inconsistent with every substantial right of property as to deserve no toleration whatever from any intelligent court, either of law or equity": Fisher v. Hall, 41 N. Y. 421, 422; see also Burton v. Boyd, 1 Kan. 17, 31, et eeq.; Huey v. Huey, 65 Mo. 689. Taking this view of the case, John Stone obtained no title from Dudley S. French, for Dudley S. French had none what- ever to convey. This is unlike a case where a deed is only voidable, and a bona fide purchaser obtains title from the holder of the same without any notice of its infirmity. In such a case he may obtain a good title; but where the deed is absolutely void he cannot. It seems to be admitted that if the deed were forged, no person could obtain any title under it, however innocent he might be; but a forged deed is no more void than this deed. Both in this respect are precisely alike; both are equally void, and neither the record of a forged deed nor the record of an absolutely void deed can be invoked to support or bolster up a disputed title; for the record is worth no more than the original deed itself. It is only in- struments that have some validity, and that may in some manner affect real estate, that can be recorded legally. There is no statute authorizing the recording of a void instrument, and it is an error to suppose that the statutes can have the effect of making valid an absolutely void instrument by per- mitting the void instrument to be recorded. The inetrument is still void, although recorded. The record can give it no AM. ST. RIP.. VOL. I. -16 242 STONE v. FRENCH. [Kansas, validity. As tending to support the view that a purchaser of real estate from a person holding under a void recorded deed, although in fact a bona fide purchaser, cannot obtain a good or valid title, or indeed any title, we refer to the following au- thorities: Everts v. Agnes, 6 Wis. 453; Tisher v. Beckwith, 30 Id. 55; 11 Am. Rep. 546; Chipman v. Tucker, 38 Wis. 43; 20 Am. Rep. 1; Van Amringe v. Morton, 4 Whart. 382; 34 Am. Dec. 517; Smith v. South Royalton Bank, 32 Vt. 341; 76 Am. Dec. 179; Harkreader v. Clayton, 56 Miss. 383; 31 Am. Rep. 369; Berry v. Anderson, 22 Ind. 37, 40. The case of Lewis v. Kirk, 28 Kan. 497, 505, 42 Am. Rep. 173, has no reference to void deeds, or to the record of void deeds. A deed not delivered at all is a very different thing from a deed actually delivered, even though the delivery of the same may have been procured through fraud; and a deed not de- livered, but wrongfully in the hands of the apparent grantee, without fault or negligence on the part of the owner of the land, is unlike a deed not delivered, but which, through the fault or negligence of the owner, has been permitted to get into the hands of the apparent grantee. In the present case the deed was never delivered, and was not permitted to get into the hands of Dudley S. French, the apparent grantee, while Francis B. French was the owner of the land; but after Francis B. French died, and after the title to the land had passed from him to his heirs, the deed did get into the hands of Dudley S. French, the apparent grantee, but not through any fault or negligence on the part of the heirs, who were then the owners of the land. Other points are raised in this case, but they are technical and unsubstantial, and require no comment. To reverse the judgment of the court below for any of them would be a vio- lation of the spirit of the Civil Code, and especially of sections 140 and 304. We think no substantial error has been com- mitted in this case; and it is unnecessary to prolong this opinion. The judgment of the court below will be affirmed. DELIVERY OP DEED. A deed is never valid in the absence of its delivery by the grantor and its acceptance by the grantee. With respect to its ac- ceptance there may be many cases in which it will be presumed without any direct evidence upon the subject, as where such acceptance is manifestly to the interest of the grantee: JBulliU v. Taylor, 69 Am. Dec. 412; Stonev. King, 84 Id. 557. It has been held that it is possible for a deed to be delivered and yet remain in the hands of the grantor. If a delivery can exist under such Julv, 1887.] JOHNSON v. WILLIAMS. 243 circumstances, it can only be where the evidence shows that the grantor in- tended an absolute and irrevocable delivery: Wall v. Wall, 64 Id. 147. In the event of the execution and recording of a conveyance of a father to his minor child, the acceptance of the deed by the latter will be presumed and the delivery regarded as sufficient, though the father obtains possession of the deed after it is recorded, and thereafter retains such possession: Tobin v. Bass, 55 Am. Rep. 392. But the recording of a deed, where its deliv- ery is not proved or presumed, does not entitle it to be regarded as a deed, or given any effect whatsoever: King v. Gilson, 83 Am. Dec. 269. The prac- tice prevails, to a considerable extent, of signing and acknowledging convey- ances which the grantors expect to operate from and after their deaths, but not before. Nothing, we think, can be clearer than that a deed must have pome effect in the lifetime of the grantor, or else can have no effect whatso- ever, unless, indeed, where it is so executed and attested as to entitle it to be treated as testamentary in its character. However this may be, if the deed, whether retained by the grantor or put by him in the possession of a third person, is by him so far kept within his control that he has the right to resume possession of it or not, then, certainly, it cannot be valid as a conveyance, though he may have intended that it should so operate in case that he did not repossess himself of it, or destroy it, previous to his death: Baker v. Haskell, 93 Am. Dec. 455, and note; Jones v. Jones, 16 Id. 35, and extended note, in which the cases on the subject are referred to. UNDELIVERED DEED, NOT FULLY EXECUTED, stolen from grantor, passoa no title, even to a bonajide holder for value: Twher v. Beckwitli, 11 Am. Rep. 546; Van Amrinye v. Morton, 4 Whart. 382; 34 Am. Dec. 517; Clupman v. Tucker, 38 Wis. 43; 20 Am. Rep. 1. WHAT CONSTITUTES SUFFICIENT DELIVERY OF DEED: See Wellborn v. Weaver, 63 Am. Dec. 235; Hibberd v. Smith, 56 Am. Rep. 726; Burke v. Adams, 50 Id. 510; Toft v. TaJ't, 60 Id. 291; Fain v. Smith, 58 Id. 281, and note. JOHNSON v. WILLIAMS. f37 KANSAS, 179.] QUITCLAIM DEED TO LAND CONVEYS ALL GRANTOR'S INTEREST and estate in biich land, unless otherwise specified in the deed itself. COVENANTS OF FORMER GRANTORS WHICH RUN WITH LAND PASS TO GRANTEE UNDER QUITCLAIM DEED. Grantee in a quitclaim deed ob- tains the right to any interest that may at any time come to grantees of his former grantors by virtue of covenants that run with the land. GRANTOR GIVING QUITCLAIM DEED may subsequently acquire and assert against his grantee adverse title to the same land. BON A FIDE PURCHASER. Grantee holding only a quitclaim deed from his immediate grantor is not a bonajide purchaser. GRANTEE UNDER QUITCLAIM DEED TAKES WITH NOTICE OF DOUBTFUL TITLE, and is put upon inquiry as to such title; and he is presumed to have a knowledge of all outstanding equities and interests which he could have obtained with a reasonable degree of diligence. EJECTMENT brought by Williams against Johnson to recover certain lands. 244 JOHNSON v. WILLIAMS. [Kansas, Bowen and Kirkpatrick, for the plaintiff in error. Scott and Frith, for the defendant in error. By Court, VALENTINE, J. This was an action in the nature of ejectment, brought by D. H. Williams against Samuel M. Johnson for the recovery of certain real estate in Elk County. The record clearly shows that Williams is the legal owner of the land in controversy, unless his title thereto has been divested by a certain tax deed, and other proceedings founded thereon, which will be hereafter mentioned. On September 17, 1881, the aforesaid tax deed was executed by the county clerk of Elk County to Anna Eby, and was recorded on Sep- tember 20, 1881. On said day Anna Eby executed a quit- claim deed for the land to Lark Vinson, which deed was recorded on December 10, 1881. On September 26, 1881, Vinson commenced an action in the district court of Elk County against the said defendant, D. H. Williams, and others, to quiet his title to the property in controversy, and obtained service of summons by publication only. On Decem- ber 8, 1881, a judgment was rendered in that action quieting Vinson's title as against all the defendants in that action. On December 10, 1881, Vinson executed a quitclaim deed for the property to Richard M. Roe, which deed was recorded on De- cember 19, 1881. On July 22, 1882, said Roe, by his quit- claim deed, remised, released, and quitclaimed unto Samuel M. Johnson, the plaintiff in error, defendant below, all his right, title, and interest in and to the land, which deed was duly recorded on July 25, 1882. On October 12, 1882, Wil- liams filed his motion in the district court of Elk County to open up said judgment under section 77 of the Civil Code; and such proceedings were had that on November 8, 1883, the mo- tion was sustained, and Williams permitted to defend in the action. On March 7, 1884, a trial was had in the action, and judgment was rendered in favor of Williams, and against Vin- son, decreeing Williams to be the owner in fee-simple of the land, and quieting his title as against Vinson and all persons claiming under him. This present action of ejectment was commenced on August 8, 1884, and was tried before the court without a jury, and judgment was rendered in favor of Wil- liams, and against Johnson, for the recovery of the land, and for costs. Johnson brings the case to this court for review It is admitted that Johnson, in purchasing the property, paid value therefor, and at the time had no knowledge of the July, 1887.] JOHNSON v. WILLIAMS. 245 claim of Williams; or m otner words, it is admitted that Johnson was "a purchaser in good faith" of the property, provided a purchaser taking a quitclaim deed for the property can be "a purchaser in good faith." In this state, a quitclaim deed to land will convey to the grantee all the rights, interests, title, and estate of the grantor in and to the land, unless other- wise specified by the deed itself: Conveyance Act, sec. 2; Utley v. Fee, 33 Kan. 683, 691. Such deed will convey such of the covenants of former grantors as run with the land : Scojfins v. Grandstajf, 12 Id. 467. And the grantee in a quitclaim deed will be entitled to such further title or estate as may inure at any time to the grantees of such former grantors by virtue of such covenants as run with the land: See case last cited. But a quitclaim deed will not estop the maker thereof from after- ward purchasing or acquiring an adverse title or interest, and holding it as against his grantee: Simpson v. Greeley, 8 Id. 586, 597, 598; Bruce v. Luke, 9 Id. 201, 207, et seq.; 12 Am. Rep. 491; Scoffins v. Grandsta/, 12 Kan. 469, 470; Young v. Clip- pinger, 14 Id. 148, 150; Ott v. Sprague, 27 Id. 624. And a person who holds only by virtue of a quitclaim deed from hia immediate grantor, whether he is a purchaser or not, is not a bonafide purchaser: Bayer v. Cockrill, 3 Id. 283, 294; Oliver v. Piatt, 3 How. 333, 410; May v. Leclaire, 11 Wall. 217, 232; Villa v. Rodriguez, 12 Id. 323; Dickerson v. Colgrove, 100 U. S. 578, 584; Baker v. Humphrey, 101 Id. 494, 499; Runyon v. Smith, 18 Fed. Rep. 579; United States v. Sliney, 21 Id. 895; Watson v. Phelps, 40 Iowa, 482; Smith v. Dunton, 42 Id. 48; Besore v. Dosh, 43 Id. 211, 212; Springer v. Bartle, 46 Id. 688; Postel v. Palmer, 71 Id. 157; Bragg v. Paulk, 42 Me. 517; Coe v. Persons Unknown, 43 Id. 432; Ridgeway v. Holliday, 59 Mo. 444; Sto/el v. Schroeder, 62 Id. 147; Mann v. Best, 62 Id. 491; Rodgers v. Burchard, 34 Tex. 441, 452; 7 Am. Rep. 283; Harrison v. Boring, 44 Tex. 255; Thorn v. Newson, 64 Id. 161; 53 Am. Rep. 747; Richardson v. Levi, 67 Tex. 359; Smith's Heirs v. Branch Bank of Mobile, 21 Ala. 125, 134; Derrick v. Brown, 66 Id. 162; Everest v. Ferris, 16 Minn. 26; Marshall v. Roberts, 18 Id. 405; 10 Am. Rep. 201; Woodfolk v. Blount, 3 Hayw. (Tenn.) 146; 9 Am. Dec. 736; Smith v.Winston, 2 How. (Miss.) 601; Kerr v. Freeman, 33 Miss. 292, 296; Learned v. Corley, 43 Id. 688; Leland v. Isenbeck, 1 Idaho, 469; Baker v. Woodward, 12 Or. 3, 10; Richards v. Snyder, 11 Id. 511; Snowden v. Tyler, 21 N'.-b. 199; McAdow v. Black, 6 Mont. 601; Martin v. Morris, 62 Wis. 418; Laurena v. Anderson, 1 S. W. Rep. 379 (Tex.); 246 JOHNSON v. WILLIAMS. [Kansas, Dodge v. Briggs, 27 Fed. Rep. 160; Peaks v. Blethen, 77 Me. 510. It may be that, \vith reference to some equities or interests in real estate, the purchaser who holds only under a quitclaim deed may be deemed to be a bona fide purchaser; for equities and interests in real estate may sometimes be latent, hidden, secret, und concealed, and not only unknown to the purchaser, but undiscoverable by the exercise of any ordinary or reasonable degree of diligence. It is possible, also, that a purchaser tak- ing a quitclaim deed may, under the registry laws, be consid- ered a bona fide purchaser with reference to a prior unrecorded deed, with respect to which he has no notice, nor any reason- able means of obtaining notice: Bradbury v. Davis, 5 Col. 265; Butterfield v. Smith, 11 111. 485; Brown v. Banner Coal and Coal Oil Co., 97 Id. 214; 37 Am. Rep. 105; Fox v. Hall, 74 Mo. 315; 41 Am. Rep. 316; Graff v. Middleton, 43 Cal. 341; Pet- tingill v. Devin, 35 Iowa, 344. But, contra, see Thorn v. New- 8om, 64 Tex. 161; 53 Am. Rep. 747, and note; Pastel v. Palmer, supra. We would think that in all cases, however, where a pur- chaser takes a quitclaim deed, he must be presumed to take it with notice of all outstanding equities and interests of which he could, by the exercise of any reasonable diligence, obtain notice from an examination of all the records affecting the title to the property, and from all inquiries which he might make of persons in the possession of the property, or of per- sons paying taxes thereon, or of any person who might, from any record, or from any knowledge which the purchaser might have, seemingly have some interest in the property. In nearly all cases between individuals, where land is sold or conveyed, and where there is no doubt about the title, a general warranty deed is given; and it is only in cases where there is a doubt concerning the title that only a quitclaim deed is given or received; hence, when a party takes a quitclaim deed, he knows he is taking a doubtful title, and is put upon inquiry as to the title. The very form of the deed indicates to him that the grantor has doubts concerning the title; and the deed itself is notice to him that he is getting only a doubtful title. Also, as a quitclaim deed can never of itself subject the maker thereof to any liability, such deeds may be executed recklessly, and by persons who have no real claim, and scarcely a shadow of claim to the lands for which the deeds are given; and tho deeds may be executed for a merelv nominal consideration. July, 1887.] JOHNSON v. WILLIAMS. 247 and merely to enable speculators in doubtful titles to harass and annoy the real owners of the land; and speculators in doubtful titles are always ready to pay some trifling or nom- inal consideration to obtain a quitclaim deed. This kind of thing should not be encouraged. Speculators in doubtful titles are not so pre-eminently unselfish, altruistic, or philan- thropic in their dealings with others as to be entitled to any very high degree of encouragement from any source. There are cases which are claimed to be adverse to the opinions herein expressed. They will be found cited in Martindale on Conveyancing, sees. 59, 285, and notes, and 12 Cent. L. J. 127. Not wishing to decide anything further in this case than is necessary to be decided, our decision will be as follows: A per- son who holds real estate by virtue of a quitclaim deed only from his immediate grantor, whether he is a purchaser or not, is not a bona fide purchaser with respect to outstanding and adverse equities, and interests shown by the records, or which are discoverable by the exercise of reasonable diligence in making proper examinations and inquiries. The judgment of the court below will be affirmed. WORM "RELEASE, REMISE, AND FOREVER QUITCLAIM," used in a deed of land, are effectual to pass title to grantee: Roux v. Beckett, 95 Am. Dec. 676. Quitclaim deed is as effectual to pass title as a deed of bargain and sale: J/c- Connel v. Reed, 38 Id. 124, and note. Quitclaim deed conveys only interest of grantor at the time it was executed: Towle v. Swing, 99 Id. 181; Taylor v. Harrison, 26 Am. Rep. 304; Derrick v. Brown, 66 Ala. 162; T/iorn v. Newson, 65 Am. Rep. 747, and note; Rodger 8 v. Burchard, 7 Id. 283. Entry under quitclaim deed of tax collector gives color of title and possession of land cov- ered by deed: Wells v. Jackson etc. Co., 90 Id. 575, and note 592. After- acquired title does not pass: Bruce v. Luke, 12 Id. 491. To the rule that quitclaim deed conveys only the interest of grantor at time conveyance is made, there are two exceptions; one is founded upon the recording act, and the other iswh'ere sale has been made by sheriff under execution: Allison v. Thomas, ante, p. 89. Quitclaim deed, with the additional words, "in such manner as he [the grantor] may and to the extent that he has heretofore ac- quired title to," etc., will not pass an after-acquired title: Torrence v. Sliedd, 112 111. 466. Quitclaim deed, given by one who is a devisee for life, and who also has a power to dispose of entire estate, conveys his life estate only: Towle v. Ewimj, 99 Am. Dec. 179. Deed of release and quitclaim, describ- ing interest conveyed by grantor as that held by him as heir of A, does not convey an independent title to grantor: Inyalla v. Newludl, 139 Mass. 268. Land bought by grantor, and held by him under land-office certificate, will pan to grantee under quitclaim deed, when it is afterwards patented to grantor: Front v. Jfelh etc., 56 Mich. 62. Quitclaim deed of mortgaged prem- iaes, made by the mortgagee before foreclosure of mortgage, and without as- signment to grantee of mortgaged debt, passes no title: Lunt v. Lunt, 71 Me. 177. Recorded quitclaim deed takes precedence of prior unrecorded war* 248 BENNETT v. KROTH. [Kansas, ranty deed: Cutler v. James, 54 Am. Rep. 603; Fox v. Hall, 41 Id. 316; Brown v. Banner etc. Co., 37 Id. 105. Prior unrecorded quitclaim deed takes precedence of subsequent quitclaim deed which is duly recorded: Marshall v. Roberts, 10 Id. 201. Effect of prior unrecorded deed: Johnson v. Tool, 25 Id. 164, note. Interest of grantee under recorded quitclaim deed is subordinate to that conveyed by a prior unrecorded mortgage: Snow v. Lakes Adm'r, 51 Id. 625; contra, Allison v. Tliomas, ante, p. 89. Record of quitclaim deed of land as constructive notice: Ely v. Wilcox, 91 Am. Dec. 436, and note. Op- erative words of release in simple quitclaim deed are "remise, release, and quitclaim": Touchard v. Crow, 81 Id. 108. The words "all my right, title, and interest in and unto," in granting part of a deed, make it a quitclaim deed: Gumming* v. Dearborn, 56 Vt. 441. BENNETT v. KROTH. 137 KANSAS, 235.] COSTS IN CRIMINAL ACTIONS ARE UNKNOWN at common law, and are only given by statute. COSTS ARE STATUTORY ALLOWANCE to a party to an action for his expenses incurred in such action, and have reference only to the parties and the amounts paid by them. WITNESSES MAY BE COMPELLED BY STATE to attend court and give their evidence without compensation. WITNESSES ON BEHALF OF DEFENDANT CHARGED WITH CRIME, whom he re- quests or compels to attend court, are entitled to recover of him for their services as such witnesses. ACTION by Kroth for his services in attending court as a witness in behalf of defendants. Defendants demurred. The demurrer was overruled, and judgment entered for plaintiff. Hayden and Hayden, for the plaintiffs in error. W. S. Hoaglin and John T. Morton, for the defendant in error. By Court, HOLT, C. The petition filed by the defendant in error, plaintiff below, is in the usual form for services ren- dered; it states that plaintiff was in attendance upon the district court for five days at defendants' request; that he was compelled to travel thirty-two miles in going to and re- turning from court. The defendants demurred to the petition, because it did not state facts sufficient to constitute a cause of action. The demurrer was overruled by the court, and judgment rendered for plaintiff for the amount claimed in his petition. Nothing was stated therein concerning fees, though the claim was for the sum the fees would be for attendance at court and mileage, as provided by statute. Both parties agree July, 1887.] BENNETT v. KROTH. 249 that there is only one question in this case, and that is, whether a defendant tried for a felony and acquitted is liable to his own witnesses. If he is, then this judgment should be af- firmed; if riot, it should be reversed. Plaintiffs in error suggest that there are quite a number of other claims similar to this one, and as it is a question of some public importance, we give it more careful consideration than the sum involved may at first seem to justify. The plaintiffs in error, in their brief, say: "The constitution guarantees to every person accused of crime the right to meet the witness face to face, and to have compulsory process to compel the attendance of witnesses in his behalf. By this compulsory process, the state in its sovereign capacity commands the wit- ness to appear and testify, not merely for the sake of the plaintiff or defendant, but for the investigation and adjudica- tion of right. The service which the witness thus renders is merely the discharge of a public duty which he owes to the state; and, unless some statutory provision is made for his compensation, he must render such service gratuitously." They further say that costs and fees are regulated exclu- sively by statute, and are unknown at common law; and be- cause there is no statute compelling a defendant to pay costs when he is acquitted, therefore the defendants are not liable in this action. This court has held " that costs are unknown at common law, and are only given by statutory direction": State v. Campbell, 19 Kan. 481. It is well enough, there- fore, for us to understand what is meant by costs: they are the statutory allowance to a party to an action for his ex- penses in conducting such action; they have reference only to the parties, and the amounts paid or presumed to have been paid by the party seeking to recover such expenses. Tho basis of the claim in this cause is not founded upon any claim for costs in the action of the state of Kansas against these defendants; but the question is, whether the plaintiff, who was requested to appear in court by the defendants, as alleged in his petition, can recover of them for his services. Ordinarily, of course, at common law he could, for services rendered at their request. We wish, however, to decide this question on the theory that the plaintiff was regularly subpoenaed to appear in court as a witness for the defendants, and not at their personal request, as might fairly be inferred from the petition. If the defend- ants' theory is correct, we have this singular construction of 250 BENNETT v. KROTH. [Kansas, the law: when a defendant personally requests a party to appear in court as a witness in his behalf, he will be liable to such witness for services rendered; but when he requests him to appear through the proper officers of the court, then the fact that the officers brought his witness into court would relieve him of such liability. We cannot believe there is any such distinction. We agree with the defendants that the state, in the exercise of its sovereignty, may require certain services of its citizens without compensation; and this state does to this day bring its witnesses into court in certain causes where it is a party, without becoming liable to them in any event for witness fees. It is said that it is as much the duty and interest of the state to see to it that an innocent man charged with crime is ac- quitted as it is to convict and punish a criminal; and there- fore it is contended that in cases like the one we are now considering, because the state is relieved of the burden of paying costs, the defendant ought not to pay his own -witnesses. An argument might be fairly drawn from the above premises that it would be proper for the state to pay the witness of a defendant who has been falsely charged with, and unjustly prosecuted for, an alleged crime. Such an argument would be properly addressed to the legislature, but it has no place in the courts. Our statute relieves the state in this case of all liability in express terms. It would not be liable, probably, if there were no such statutory provision; but it is insisted, because the defendants cannot recover their costs of the state, the wit- nesses for the defendants ought not to recover of them; or, in other words, if for any reason B could not recover of A for damages A had inflicted upon him, therefore B would not be liable to C, though B had called upon him for aid against A. This is neither good law nor logic. While the state is equally interested in the acquittal of the innocent and in the convic- tion of the guilty, the long-established practice in the courts does not carry out the theory contended for. The state em- ploys and pays an attorney to select the witnesses for the state, and to prosecute the action, while the defendant em- ploys his own counsel and calls the witnesses in his own behalf. The defendant has a personal interest in his own behalf, differing from that of other citizens of the state. He is given by the law an ample opportunity to protect himself, and it is his province, prompted by self-interest, to do so. So July, 1887.] BENNETT v. KROTH. 251 he calls upon those whom he believes may help him; they do BO at his request; he should pay them for their services. The provision of our constitution guaranteeing compulsory process to every one charged with crime does not extend to the payment of the fees of the witnesses for the defendant, nor does it relieve him of his liability to them : Carpenter v. People, 3 Gilm. 147. The state by this provision gives every facility for a fair and impartial trial to all citizens alike, high and low, rich and poor; and, in order to give a defendant the full benefit thereof, provides by a statute in harmony with it that ina- bility to pay his fees in advance shall not impair his means of defense. This clause of our constitution has no more ap- plication to paying the defendant's witnesses than in selecting them. After the defendant has filed his precipe for witnesses, the state guarantees to the defendant the use of all its pow- ers in bringing them into court; this is its scope and effect, and nothing more. But, in our view of the case, we need not decide what may be the duties of the citizen to the state, nor of the state to one of its citizens who is called as a witness into its courts, nor even to one who has been charged with crime, and tried, and acquitted. It is the question of liability of one party to another, these defendants to their witness whom they called to their aid. It does not change the relations, duties, or obli- gations of these parties, so far as the liability of these defend- ants to plaintiff for compensation is concerned, because he upon whom they called, in order to render the aid desired, came into court as a witness in their behalf; nor does it affect that liability because the state, in defendants' interest, could have made that call imperative. We believe that the rule, that he who requires and receives services from another should pay him therefor, applies to this action, and should govern our decision. We presume it will be conceded that a witness would be liable to the defendant for any damages occasioned by his failure to attend court when regularly subpoenaed. Ordinarily it would be fair to infer that, because of this contingent lia- bility of the witness to the defendant if he failed to perform certain services, there ought, on the other hand, to be some compensation if he did perform them. We have carefully examined all the authorities cited in the briefs of both parties. Many of them relate to costs or feea 252 BCRKE v. JOHNSON. [Kansas, in civil actions, others to the taxation of costs in actions pend- ing, while others were decided with reference to the statutes of the state where the decisions were rendered. The only authority we find in point is State v. Whithed, 3 Murph. 223. The point decided was submitted in the original case, not in an action by the witness against the defendant. It was this: where a defendant had been tried and acquitted, would he be liable for costs, and if so, what costs? The court, in deciding the case, said: " The defendant is bound to pay his own costs, for he incurs them by calling on those whose services he thinks he needs, and he must pay them for labor done at his request." In that state, as in this, there was no statute concerning the liability of the defendant to his own witnesses, when he had been charged with a crime and acquitted. We believe the judgment of the court below should be affirmed. WITNESS FEES. Witness subpoenaed and attending court in good faith can recover compensation for such attendance, and reasonable traveling ex- penses: Gunnison v. Ounnison, 77 Am. Dec. 764. For an extended discussion on the subject of compensation of witnesses, see note to Ela v. Knox, 88 Id. 182. Witness without the state, obeying subpoena in a criminal action, is entitled to his per diem and mileage for whole distance traveled by him: Westfall v. Madison Co., 62 Iowa, 427. Defendant, under indictment in one case, made a witness for the United States in another case, is entitled to witness fees: In re Addis, 28 Fed. Rep. 794. Officers of defendant corpora- tion, representing such corporation, and giving testimony in a suit for an accounting by corporation, are not allowed fees as witnesses: Am. Diamond etc. Co. v. Sullivan etc. Co., 23 Blatchf. 144. Effect of pardon on judgment for costs: State v. Mooney, 21 Am. Rep. 487; Estep v. Lacy, 14 Id. 498. BURKE v. JOHNSON. [37 KANSAS, 837. J JUDGMENT is LIEN UPON ACTUAL, not the apparent, interest of the de- fendant. ATTACHMENT LIEN is not greater than that created by a judgment. PLAINTIFF LEVYING ATTACHMENT is NOT PURCHASER, and is therefore af- fected by 'prior transfers of which he has no notice. CONTRACT OF PURCHASE TRANSFERS TO GRANTEE the eqiiitable right to the property, subject to the grantor's lien for the remaining unpaid purchase - money. Under contract of purchase, grantee can compel grantor to make conveyance of legal title when the purchase-money is paid. INTEREST OF VENDOR WHO HAS MADE CONTRACT OF SALE and received part of the purchase-money is not subject to attachment or execution, July, 1887.] BURKE v. JOHNSON. 253 though he retains the legal title. The vendee may, therefore, safely pay him the balance of the purchase-money, though the property has, in the mean time, been attached under a writ against the vendor. ATTACHMENT UNDER WRIT AGAINST VENDOR of property in possession of vendee, under contract of purchase, is neither a lien on the property nor on the unpaid purchase-money. ACTION by Burke against Armstrong, in which a farm and a lot of stock and implements thereon were attached on April 9 r 1884, as the property of Armstrong. I. B. Johnson inter- pleaded, claiming the property. He had purchased it on April 8, 1884, at which time he received a written contract of Bale signed by Armstrong by his agent, Coons, and which recited the payment of $40 in money, and $1,760 in a note in favor of Armstrong, due one day after date, as in full for the farm and other property. The receipt stated that Johnson might take possession at once, and that a deed would be given to him as soon as it could be obtained from Armstrong. John- eon took possession on April 10th. On the day previous he had paid his note of $1,760, in ignorance of any attachment or claim by plaintiff, and received a conveyance from Armstrong and wife of all the property. These facts were found by the court, which adjudged that Johnson was entitled to the prop- erty. Motion for new trial was overruled. /. 0. Pickering, 0. A. Bassett, and G. C. Clemens, for the plaintiff in error. A. Smith Devenney, John T. Idttle, and Samuel T. Seaton, for the defendant in error. By Court, CLOQSTON, C. But one question is presented, that ifl, Are the conclusions of law sustained by the findings of fact ? This question must be determined by an examination of the title to the property at the time the attachment was levied; and if Armstrong at that time had a leviable interest in the property, then the judgment should be reversed. The facts as found by the court show that the legal title to the property re- mained in Armstrong, subject to the interest and rights of Johnson under his contract of purchase. This contract trans- ferred to Johnson the equitable right to the property, subject alone to Armstrong's lien for the remaining unpaid purchase- money. This lien amounted to a security only, and when this purchase-money was paid he could be compelled to convey the legal title to the equitable owner of the property: Jones v. Lap- 254 BCRKE v. JOHNSON. [Kansas, ham, 15 Kan. 544; Stevens v. Chadwick, 10 Id. 407; 15 Am. Rep. 348; Orrick v. Durham, 79 Mo. 177; Woodward v. Dean, 46 Iowa, 499. This doctrine has been fully settled by this court. In Holden v. Garrett, 23 Kan. 98, this question is dis- cussed. In that case the question was, Is a judgment a lien on property, where the legal title is held by the judgment debtor and the equitable title or interest is held by the mort- gagee, so as to defeat the mortgagee's interest in the property ? It was held in that case that the judgment was not a lien upon the bare, naked legal title, the equitable title being held by another. The statute provides that judgments shall be liens upon the real estate of a debtor within the county. It was said: "This evidently contemplates actual and not apparent ownership. The judgment is a lien upon that which is his, and not that which simply appeared to be his. How often the legal title is placed in one party when the equitable title, the real ownership, is in others! Now, if the judgment is a Ken upon all that appears, it will cut off all the undisclosed equi- table rights and interests. To extend the lien to that which is not, but appears of record to be the defendant's, is to do vio- lence to the language. ' Real estate of the debtor,' plainly means that which is in fact of or belonging to the debtor": See English v. Law, 27 Kan. 242; Ransom v. Sargent, 22 Id. 516; Harrison v. Andrews, 18 Id. 541; Northwestern Forward- ing Co. v. Mahaffey, 36 Id. 152. In this case, the attachment binds the property of the debtor from and after the levy. The writ directs the officer to at- tach " the lands, tenements, goods, and chattels, stock, rights, and credits, moneys and effects of defendant in his county, not exempt by law "; and when so attached, a lien is created. Now, is this lien, under this order of attachment, greater than that created by a judgment? Surely not. A judgment is a lien upon all the property of the debtor, subject to the payment of his debts, and so is the attachment a lien upon the property of the debtor for the same purpose. Plaintiff insists, however, that at the time of the levy of the attachment he had no notice, actual or constructive, of the purchase by Johnson of the property. We think no notice was necessary. The plaintiff in error lost nothing by want of such notice. He had parted with nothing; was not a purchaser in good faith, relying upon the constructive notice that persons without actual notice may rely upon; he was trying to enforce a claim, and, with notice or without, it left him in the same July, 1887.] BURKE v. JOHNSON. 255 condition. If he had been a purchaser in good faith, relying upon a legal title to the property, he would be protected. Plaintiff again insists that his attachment at least bound the property and the defendant in error to the extent of the unpaid residue of the purchase-money, and that because John- eon, the defendant, paid the remaining purchase-money after the levy of the attachment, and after he had constructive knowledge of such levy, the plaintiff is entitled to a lien and judgment against the property to the extent of that unpaid purchase-money at the time of the levy. The court found that at the time of the payment of this purchase-money the defendant had no actual knowledge of the levy of the attach- ment; that he paid the money in good faith upon his contract, and accepted the title. Under such circumstances, the attach- ment could not bind the purchase-money; the land was not subject to attachment as the property of Armstrong, and con- sequently did not impart such constructive notice as would bind Johnson in the payment of this money: French v. Debow, 38 Mich. 708. If he had actual notice of the levy of the at- tachment upon the property, and of Armstrong's fraud, and with this knowledge paid the purchase-money, he would not be protected: See Bush v. Collins, 35 Kan. 535; McDonald v. Gaunt, 30 Id. 693; Gollober v. Martin, 33 Id. 252. Counsel ask what remedy they are to pursue in case the attachment will not bind the property or the purchase-money, and the money cannot be reached by garnishment. In answer we can only say that all we have to deal with is the facts here presented. What the remedy would be under a given statement of facts will not be determined in advance. All we do say and all we are called upon to say in this matter is, that the attachment created no lien upon the property, and could not operate to restrain and hold the unpaid purchase- money in the hands of the defendant. Good faith on the part of Johnson in the completion of the contract is fully shown by the findings of the court. Counsel, however, insist that the conclusions drawn from these findings are not correct; that the fact of the hurried manner of the purchase, the manner of its sale in bulk, including the farm and personal property, the haste of the transaction, and the consideration paid, were suffi- cient to place Johnson upon his guard, and give notice of Armstrong's fraudulent intent. If these things are badges of fraud, and of such a character as to set aside this transaction, we think it would unsettle the real estate transactions, or many 256 BURKE v. JOHNSON. [Kansas. of them, in Kansas. This property was regularly left in the hands of a real estate agent for sale; had remained in his hands for some days; he had offered it for sale; it had become known in the neighborhood; Johnson's attention was called to it by a neighbor; he went and found the agent and owner, visited the land, examined the records to see that the title was good, made an offer for the premises, including the stock and farming implements thereon, and this offer was accepted, and the contract drawn on the same day; part of the consideration was paid, and the transaction completed on the next day. We see no evidence of fraud in this. Apparent good faith characterized every transaction connected with it, so far as the defendant was concerned. The evidence fully shows this, and, further, that the property had been purchased by Arm- strong from the plaintiff in bulk, and purchased as an entire transaction, and by Armstrong sold in the same way. And now, because of the fraudulent transaction on the part of Arm- strong in the purchase of this property from the plaintiff, and perhaps the sale of it for that reason to Johnson, we are asked to set aside the sale, notwithstanding the fact that good faith is shown on the part of the defendant, and that there are no circumstances connected with the transaction calculated to excite the suspicions of a prudent man, or warn him of the fraudulent intent connected therewith. It is recommended that the judgment of the court below be affirmed. EQUITABLE TITLE TO REAL ESTATE PASSES FROM DATE OF CONTRACT or SALE: Brewer v. Herburt, 96 Am. Dec. 582, and note. As to when such con- tract is binding, see Id. In equity, vendee of land under contract of sale is considered a trustee of vendor for payment of purchase-money: Walton v. Hargroves, 97 Id. 431; Brewer v. Herburt, 96 Id. 583. Vendor is a trustee for purchaser: Swepson v. Rouse, 6 Am. Rep. 735. Vendor of land has lien in equity for unpaid purchase-money: Gee v. McMillan, 58 Id. 315. Requisites for creation of vendor's lien: Harvey v. Kelly, 93 Am. Dec. 267. Against whom lien of vendor of real estate for unpaid purchase-money exists: Ellis v. Temple, 94 Id. 200, and note. Vendor's lien will prevail as against vendee, his assigns with notice, and as against those having an equitable title only: Walton v. Hargroves, 97 Id. 429. Vendor's lien exists in Massa- chusetts only when expressly so stated: Akrend v. Odiorne, 19 Am. Rep. 449. Whether lien for purchase-money of land revives where security taken proves worthless: Madden v. Barnes, 30 Id. 703; Fouch v. Wilson, 28 Id. 651; Ken- drick v. Eggleston, 41 Id. 90. Action for enforcement of vendor's lien for purchase-money of land cannot be enforced after statutes of limitation have run against note given for payment of such money: Tote v. Hawkins, 50 Id. 185. Vendor's lien may be enforced in favor of one who is not grantor of land: Russell v. Watt, 93 Am. Dec. 270. Vendor's lien passes with notes July, 1837.] CUNNINGHAM v. JONES. 25T given for purchase-money of land to his assigns, who may, in equity, subject the land to the payment of such notes: Robinson v. Harbour, 97 Id. 502, and . note; Perry v. Roberts, 95 Id. 689; Sloan v. Campbell, 36 Am. Rep. 493;. Stevens v. CJiadwick, 15 Id. 348. Contra: Simpson v. Montgomery, 99 Am.." Dec. 228; Hecht v. Rpears, 11 Am. Rep. 784; Massey v. Goi-ton, 90 Am. Dec.- 287, and note 300. Distinction between lien of vendor after conveyance, which is absolute, and where contract of sale is unexecuted: Walton v. Har- - groves, 97 Id. 429, note 433. Existence, priority, and enforcement of ven- dor's lien for purchase-money of land: Walton v. Hargroves, 97 Id. 432; Fain v. Inman, 19 Am. Rep. 577. Express reservation of vendor's lien in deed amounts to an equitable mortgage: Harvey v. Kelly, 93 Am. Dec. 267. Rights of vendee of land who has paid for land, and entered into possession under parol purchase, are paramount to the liens of subsequent judgment, creditors of vendor: Snyder v. Martin, 41 Am. Rep. 670. Equity will protect equitable rights of third persons existing at time judgment lien attaches: Id. ; Freeman on Judgments, sees. 356, 357. Rights of attaching creditors of ven- dor are not affected by unrecorded deed of which they had no notice: Carter- knowledge of the defect in the bridge, these instructions be- come unimportant. We have examined the objections to the admission of evi- dence, and it is sufficient to say that we do not regard the rulings to have been prejudicial to the rights of the plaintiff in error. One of the grounds for a new trial was the misconduct of counsel in hie closing argument. The affidavits which were filed in the case show that the remarks of counsel were out- side of the evidence, and were clearly improper. However,, no objection to the remarks was made, except to the state- ment that Irwin would wait in misery and pain for the com- AM. 8r RIP.. VOL. I. IS 274 ST. Louis ETC. R. R. Co. v. IRWIN. [Kansas, ing-in of the jury, and that he hoped they would give more than the jury did before, to pay for the long trouble and the long work. The objection to this statement was promptly sustained by the court, and the attention of the court below was not called to any other of the objectionable statements. Of course the arguments should be confined to the facts brought out in the evidence, and it is error to allow counsel, over objections and exceptions, to discuss matters foreign to the evidence and prejudicial to the opposing party. But in exercising its appellate jurisdiction, this court is limited to the review of the alleged errors committed by the district court; and generally speaking, the attention of the trial court should be called to the improper language of counsel, and a ruling had upon the objection, in order to present the ques- tion here. There being no exception to the ruling on an ob- jection, nor any unsustained objection, we cannot say the court erred: State v. McCool, 34 Kan. 613, 617. Some other objections were made, all of which have been examined, but we find nothing in the case that will justify a reversal, and hence the judgment of the district court will be affirmed. RAILROAD COMPANY MUST PROTECT EMPLOYEES FROM DANGER, by use of all reasonable safeguards: Towns v. Vicksburg etc. R. R. Co., 55 Am. Rep. 508. Reasonable care required of master to avoid the exposure of servants to extraordinary risks: Wonder v. Baltimore etc. R. R. Co., 3 Id. 143, and note. Ordinary care must be used by company in providing suitable structures, engines, and apparatus, and in furnishing safe and sufficient road- way: O'Donnell v. Alleghany Valley R. R. Co., 98 Am. Dec. 336. For lia- bility of railroad company to employees for injury sustained by low bridge, or other obstructions over or near the track, see Brossman v. L. V. R. R. Co., 67 Id. 479, and cases there cited; Hooper v. Columbia and Greenville R. R. Co., 53 Id. 691, and note; Van Ambugh v. Vicksburgh R. R., 55 Am. Rep. 517; Clark v. Richmond R. R., 49 Id. 394. When contributory negligence bars recovery: Northern Central Railway Co. v. State, Use of Price, 96 Am. Dec. 545; see Wichita d; W. R. R. Co. v. Daw, post, p. 275. Negligence on part of in- jured party, what constitutes to bar recovery, and what questions considered by jury in determining whether such negligence existed: Northern Central R. R. Co. v. State, Use of Price, 96 Id. 545; Spencer v. B. & 0. R. R. Co., 54 Am. Rep. 269, and note. Servant assumes ordinary risks of hia employ- ment: O'Donnell v. Alleghany Valley R. R. Co., 98 Am. Dec. 336. July, 1887.] WICHITA ETC. R. R. Co. v. DAVIS. 275 WICHITA AND WESTERN R. R. Co. v. DAVIS. [37 KANSAS, 743.] CROSSING RAILROAD. To entitle one to recover for injuries sustained while going over a railroad crossing he must, before attempting to cross, use reasonable and ordinary care to determine whether a train is ap- proaching, and if he neglects so to do, he crosses at his peril. NEGLIGENCE. Where the undisputed facts show that no precaution has been taken to ascertain and avoid dangers by one injured at a railroad crossing, it then becomea a question of law for the courts. WHERE THERE is CONFLICT OF TESTIMONY AS TO DEGREE of care used by one who is injured in crossing a railroad, it is then a question for the jury. SLIGHT CONTRIBUTORY NEGLIGENCE not clearly shown to have contributed to plaintiff's injury will not defeat his recovery when the employees of the defendant were grossly negligent. THE defendant in error, plaintiff below, brought this action against the plaintiff in error to recover compensation for in- juries sustained in crossing defendant's track. The plaintiff was a farmer, about sixty years of age. When returning home from Wichita, he passed out on Oak Street, which crosses the railroad track of defendant. On the south side of Oak Street, sixty-four feet west of the track, is a peach orchard, which for a distance obstructs the view of the track. South of this for several blocks were dwellings and elevators. There were two switches parallel with the main track, and on these at inter- vals, extending for some distance, were a number of loaded cars, two of which were partly on the crossing. The accident occurred between three and four o'clock in the afternoon, at which time the wind was blowing hard, and it was cloudy and very dusty. Plaintiff was driving a team hitched to a two- horse wagon, and on approaching the crossing, he looked both north and south. He saw cars on the side-track, but no engine or train. He drove on, and when the horses were partly over the main track, discoveped a train backing towards him. The car nearest to him was a coal car, loaded with telegraph poles, some of which extended beyond the end of the car. Plaintiff was knocked out of the wagon by the car, and sustained* injuries to his back and hips. The engine was in charge of the fireman, the engineer being absent. There was no one on the outside of the cars watching its movements. The trainman first saw plaintiff when he was driving on the track, and then the engine was reversed and the train stopped. Trial by jury at the February term, 1886. The plaintiff re- covered judgment for six thousand dollars and costs. The defendant appeals. 276 WICHITA ETC. R. R. Co. v. DAVIS. [Kansas, George R. Peck, A. A. Hurd, and Robert Dunlap, for the plain- tiff in error. Campbell and Dyer, for the defendant in error. By Court, CLOGBTON, C. Upon this record, the plaintiff in error raised but two questions, but as they are substantially one in fact, we shall discuss them as one, and that is, Did the injury occur by the contributory negligence of the defendant? The plaintiff in error now contends that on the facts found by the jury it was error not to direct the jury to return a verdict for the defendant, plaintiff in error. Upon this theory, it re- quested the court to instruct the jury as follows: " I instruct you that if the plaintiff, before driving upon the track of the defendant at which the injury complained of occurred, could at any time have seen the approaching train in time to escape by looking to the south, it will be presumed, as a matter of law, either that he did not look, or that if he did look, that he did not heed what he saw, and concluded to take the risks of attempting to cross in front of the approaching train; in which case, I instruct you that the plaintiff, if you so find the facts, was guilty of contributory negligence, contributing to his injury, and cannot recover in this case." This instruction the court refused to give. The rule, as contended for by the plaintiff in error, is, that if the plain- tiff could have seen, by carefully looking, the approach of the train, then it was negligence for him to drive over the track ahead of the train, knowing that the train was coming; or, if he failed to look, or if looking, failed to discover the train and drove upon the track and was injured, he cannot recover; or in other words, that if one does look and fails to discover what it would be possible for others to see, or under some cir- cumstances might have been seen by the person so looking, then it is contributory negligence not to see. If this rule is the true one, then nothing short of the greatest care and cau- -tion will warrant a recovery for injuries received through neg- ligence in the operation of trains. We do not understand the rule to be so far extended as to require the greatest care and caution, but only reasonable care, such as a man of ordinary prudence would exercise under similar circumstances: Des- mond v. Brown, 29 Iowa, 54; 4 Am. Rep. 194; L. L. & G. R. R. Co. v. Rice, 10 Kan. 426. The rule seems to be well settled in this state, that before a person can recover for injuries re- ceived in crossing a railroad at a public road or street, he July, 1887.] WICHITA ETC. R. R. Co. v. DAVIS. 277 must, before attempting to cross, recognize the danger and make use of the senses of hearing and seeing in determining whether a train is in dangerous proximity; and if he neglect this duty, and venture blindly upon the track without making an effort to ascertain whether a train is approaching, that he does so at his peril: Clark v. Missouri Pac. R'y Co., 35 Id. 354. The supreme court of Iowa, in speaking of this ques- tion, said: "The instruction was properly refused. It required too great a degree of care and circumspection. It makes no x allowance for the ordinary imperfections of humanity. It re- quires absolute perfection of attention to surroundings, while the mind is concentrated upon a particular duty. So high a degree of caution the law does not enjoin. It requires only the exercise of reasonable and ordinary care": Greenleaf v. Dubuque & S. C. R. R. Co., 33 Iowa, 57. The supreme court of the United States, referring to an in- struction similar to that contended for by the defendant, said: " It states such duty with the rigidity of a statute, making no allowances for modifying circumstances, or for accidental di- version of the attention to which the most prudent and careful are sometimes subject, and assuming in effect that the duty of avoiding a collision lies wholly, or nearly so, on one side": Continental Improvement Co. v. Stead, 95 U. S. 168. See U. P. R'y Co. v. Adams, 33 Kan. 427. But where the undisputed facts show that this rule has been disregarded, and no precaution has Deen taken to ascertain and avoid dangers, it then becomes a question of law for the court, and not a question of fact to be submitted to the jury. Where there is a conflict of testimony that reasonable men might differ about, then it becomes a question of fact to be submitted to the jury. The plaintiff testified that he looked north and south, expecting to see a train; that a gale of wind was blowing, and it was very dusty; that he saw the cars on the side-track, and looked to see whether an engine was behind them, and saw none; and the fact that the train was moving backward, are questions to go to the jury with the fact that the train was in view for some two blocks south of the crossing, and might have been seen. It was perhaps seen by the plain- tiff, and mistaken, under the above conditions of the weather and the character of the train, and he thought it to be on the side-track. It was said in Barnard v. Rens8elaer& S. R. R. Co., 1 Abb. App. 131: "If there is any conflict in the evidence going to establish any of the circumstances upon which the question 278 WICHITA ETC. R. R. Co. v. DAVIS. [Kansas, depends, it must be left to the jury. If there are inferences to be drawn from the proof which are not certain and incon- trovertible, they are for the jury. If it is necessary to deter- mine, as in most cases it is, what a man of ordinary prudence and care would be likely to do under the circumstances proved, this, involving as it generally must more or less conjecture, can only be settled by a jury." In Webber v. N. Y. Cent. etc. R. R. Co., 58 N. Y. 465, the court said: " It is true that the vigilance and caution of the traveler must be proportioned to the known danger of the injury; but it is also in a measure limited by the usual and ordinary signals and evidences of danger. The natural instinct of self- preservation ordinarily will lead to the employment of all the precaution which the situation suggests to an individual; and whether they are such as would occur to or be adopted by men of ordinary care and prudence must necessarily, in most cases, be left to the jury. The intelligence and judg- ment, as well as the experience, of twelve men, must settle a question of that character as one of fact, and not of law": K. P. Ry Co. v. Richardson, 25 Kan. 391; U. P. Ky Co. v. Young, 19 Id. 488; K. P. R'y Co. v. Pointer, 14 Id. 37; Pa. R. R. Co. v. Weber, 76 Pa. St. 157; 18 Am. Rep. 407; Carr v. N. Y. Cent. etc. R. R. Co., 60 N. Y. 633; Thurber v. Harlem etc. R. R. Co., 60 Id. 331; Louch v. Chicago etc. R. R. Co., 18 N. W. Rep. 651. While this question is a close one, yet we do not feel called upon to disturb the judgment where it is so conclusively shown that the employees of the defendant in charge of the train were BO grossly negligent in its management. Although the plain- tiff may have been somewhat negligent, yet it is not clearly shown that his negligence contributed to the injury. If he saw the train after passing the orchard, and the train was then some distance south, he might with reasonable safety have crossed before it reached the crossing, provided the train was running only at such a rate of speed as it might properly run in a populous city. This court has repeatedly held that where the negligence of one party is great, and that of the other but slight, notwithstanding the slight negligence the party may recover: Pacific R J y Co. v. Houts, 12 Kan. 328; K. P. R'y Co. v. Pointer, 14 Id. 37; Sawyer v. Sauer, 10 Id. 466. Under all the circumstances of this case, we do not find that the plain tiff was guilty of such contributory negligence as to prevent his recovery. It is therefore recommended that the judgment of the court below be affirmed. July, 1887.] WICHITA ETC. R. R. Co. v. DAVIS. 279 MUST USE EYES AND EARS. Before attempting to cross railroad track, one is bound to use his eyes and ears to determine whether a train is ap- proaching, and if he neglects to do so he will be guilty of negligence: Oon- tales v. New York etc. R. R. Co., 98 Am. Dec. 58, and note. CONTRIBUTORY NEGLIGENCE. Person seeking to recover for injuries re- sulting from negligence of railroad company must be free from negligence contributing to such injuries: Oonzales v. New York etc* R. R. Co., 98 Am. Dec. 58, and note; Oaynor v. Old Colony etc. Jt'yCo., 97 Id. 96; New Orleans etc. R. R. Co. v. StatJiam, 97 Id. 478; Louisville etc. R. R. Co. v. Siclnngs, 96 Id. 320; Baltimore etc. R. R. Co. v. State, 96 Id. 528. CONTRIBUTORY NEGLIGENCE BAR TO RECOVERY: Potter v. Chicago etc. R'y Co., 94 Am. Dec. 548; State v. Maine etc. R. R. Co., 49 Am. Rep. 622; Afar- tin v. Western Union R. R. Co., 99 Am. Dec. 189; Frazer v. South etc. R. R. Co., 60 Am. Rep. 145; Bardwell v. Mobile etc. R. R. Co., 56 Id. 842; Darwin v. Charlotte etc. R. R. Co., 55 Id. 32. NEGLIGENCE USUALLY QUESTION or FACT: Gonzalea v. New York etc. R. R. Co., 98 Am. Dec. 58, and note; Pennsylvania R. R. Co. v. Barnett, 98 Id. 346; Detroit etc. R. R. Co. v. Curtis, 99 Id. 141. SLIGHT NEGLIGENCE AS BAR TO RECOVERY: Dreher v. Town of Fitchburg, 99 Am. Dec. 91; slight negligence, ordinary care, and ordinary negligence defined: Id., and note. CONTRIBUTORY NEGLIGENCE, WHEN DOES NOT BAR RECovERy: Louisville etc. R. R. Co. v. Sickings, 96 Am. Dec. 326, note. WHAT CONSTITUTES NEGLIGENCE ON PART OF ONE INJURED TO BAR RE- COVERY: Baltimore and Ohio R. R. Co. v. State etc., 96 Am. Dec. 532, and note; Northern Central R. R. Co. v. State, 96 Id. 545. FIREMAN RUNNING ENGINE NEGLIGENCE. Permitting fireman to run engine is a fact from which jury may find negligence on the part of the com- pany: O'Mara v. Hudson River R. R. Co., 98 Am. Dec. 61. FAILURE TO RING BELL, AS REQUIRED BY STATUTE, AS QUESTION or NEGLIGENCE: O'Mara v. Hudson River R. R. Co., 98 Am. Dec. 61; St. Louis etc. R. R. Co. v. Terhune, 99 Id. 504. BURDEN OF PROOF CONTRIBUTORY NEGLIGENCE: Indiana etc. R. R. Co. r. Greene, 55 Am. Rep. 736. OBLIGATION or RAILROAD COMPANY TO GIVE WARNING OF APPROACHING TRAINS: Pennsylvania R. R. Co. v. Barnett, 98 Am. Dec. 346, note. WHAT is DUE CARE is QUESTION FOR JURY: Oaynor v. Old Colony etc. R'y Co., 97 Am. Deo. 96, and note. Care to be used by one crossing railroad track: Id. REASONABLE CARE AS TO GIVING NOTICE OF APPROACHING TRAIN ia a question of fact: Byrne v. New York Central etc, R. R. Co., 58 Am. Rep. 512. WHETHER ACT or PLAINTIFF UNDER CIRCUMSTANCES WAS NEGLIGENCE: Lawrence v. Green, 59 Am. Rep. 428; Gullim v. Lowell, 59 Id. 102, and note; Harris v. Hannibal etc. R. R. Co., 59 Id. Ill, and note. DEFENDANT NOT LIABLE WHERE INJURY TO PLAINTIFF was not proximate result of defendant's misconduct: Jackson v. Nashville etc. R. R. Co., 49 Am. Rep. 663. LIABILITY OF RAILROAD COMPANY FOR NEGLIGENT ACTS OF ITS SER- VANTS: Kline v. Central Pacific R. R. Co., 99 Am. Dec. 282, and note. LIABILITY OF DEFENDANT FOR INJURIES SUSTAINED BY PLAINTIFF, limited to what cases: Kline v. Central Pactfc R. R. Co., 99 Am. Dec. 282, note 289. 280 WICHITA ETC. R. R. Co. v. DAVIS. [Kansas. NEGLIGENCE OF CARRIER OF PASSENGER, who is injured by the concur- rent negligence of carrier and another, is not contributory negligence of such passenger: Holzab v. New Orleans etc. R. R. Co., 58 Am. Rep. 177. ADMISSIBILITT OF CONVERSATION OF AGENT or RAILROAD COMPANY: Pennsylvania R. R. Co. v. Booh, 98 Am. Dec. 229. EVIDENCE OF SIZE OF PLAINTIFF'S FAMILY, his habits and pecuniary cir- cumstances, when admissible: Pennsylvania R. R. Co. v. Books, 98 Am- Dec. 229, and note. DAMAGES, WHAT INCLUDED AS SUCH, and amount, how determined: Penn- sylvania R. R. Co. v. Books, 98 Am. Dec. 229, and note. WHEN EXEMPLARY DAMAGES MAY BE FOUND: New Orkani tie. 8. R. Go. v. Statham, 97 Am. Deo. 478, note 493. CASES SUPREME JUDICIAL COURT MAINE. OAK v. DUSTIN. [79 MAINE, 23.1 DEFENSE or DURESS 07 PRINCIPAL cannot be made by surety against whom no duress was employed. SCIRE FACIAS. The principal was not a party to the action. The surety defended on the ground that the bond was obtained by duress of the principal. Crosby and Crosby, for the plaintiff. Thomas H. B. Pierce, for the defendant. By Court, WALTON, J. This is an action of scire facias on a bail bond. The defense is duress. Not duress of the surety, against whom the action is brought, but duress of the princi- pal in the bond, who is not sued. It is claimed that he was unlawfully arrested on a writ, the oath, as the defendant con- tends, not being sufficiently formal to justify his arrest. The defense cannot prevail. The person on whom the duress was practiced is the only one who can take advantage of it as a ground of defense. It cannot be set up by a stranger, nor by a surety, on whom no restraint was imposed: Springfield Card Mffj. Co. v. West, 1 Gush. 388; Robinson v. Gould, 11 Id. 65. In the case last cited, it is said that this distinction rests on sound principle; that he only should be allowed to avoid his contract upon whom the unlawful restraint or fear has oper- ated; that the contract of a surety, if his own free act, and 281 282 BUNKER v. BARRON. [Maine, executed without coercion or illegal menace, should be held binding; that the duress of his principal cannot affect his free agency, or in any way control his action; that it may excite his feelings, awaken his generosity, and induce him to act from motives of charity and benevolence towards his neighbor; but that these can furnish no valid ground of defense against his contract, which he has entered into freely and without coercion. The defense of duress not being open to the defendant, it is not important to inquire whether his principal was or was not unlawfully arrested. But it may not be improper to add that the authorities cited by the plaintiff's counsel seem to sustain the form of the oath and the legality of the arrest; and if BO, then there was no duress of any one. But upon this point we express no opinion. Judgment for plaintiff for $101.86, with interest from date of the writ. DURESS OF PRINCIPAL, WHEN DEFENSE FOR SURETY: Brandt on Surety- ship, sec. 5; Baylies on Sureties and Guarantors, 217, 218. BUNKER v. BARRON. [79 MAINB, 62.] MORTGAGE, CONVEYANCE, AND DEFEASANCE EXECUTED AT SAME TIME, and as parts of the same transaction, though upon different pieces of paper, constitute in law but one instrument, and that instrument is a mort- gage. PAYMENT is PRESUMED PRIMA FACIE from the giving of a negotiable note for a simple contract debt. This presumption may be rebutted by any competent evidence showing that the intention of the parties was not to treat such note as a payment. PAYMENT is NOT PRESUMED from taking a negotiable note for an antece- dent debt, when such debt is secured by a mortgage or other security. MORTGAGE is DISCHARGED ONLY BY PAYMENT OR RELEASE, and not by a change in or renewal of the note or debt which the mortgage was given to secure. WRIT of entry. The defendants claimed that a deed under which plaintiff deraigned title, though absolute on its face, was, in law, a mortgage, and that such mortgage had been released and become inoperative by the mortgagee at a date subsequent to the mortgage, taking a negotiable note for a sum in which the original mortgage debt was included. Feb. 1887.] BUNKER v. BARRON. 283 /. /. Partin, for the plaintiff. D. D. Stewart and A. H. Ware, for the defendant. By Court, FOSTER, J. The plaintiff claims the premises in question under a mortgage to him from William Quint, dated September 12, 1874. While the tenant in possession does not claim to own the premises, or any part thereof, his defense is based on a title, earlier in point of time, in William Barren, his father, whose agent or servant he is, in the occupation and pos- session of the premises. That title originated in this way: On January 7, 1868, William and Draxcy Quint, and Mary Quint, their mother, conveyed by warranty deed to John S. Paine, who, on the same day, and as part of the same transaction, gave back a bond to these parties, therein agreeing to recon- vey the premises, being the farm where they then lived, upon payment to him by them of the sum of three hundred dollars, in annual payments of one hundred dollars each, in three, four, and five years from date; and also all other debts which the said Quints should thereafter contract with the said Paine. No notes accompanied these transactions. The bond wa9 not recorded till May 26, 1876. November 7, 1874, the Quints obtained $225 more from Paine; and William and Draxcy, on that day, conveyed to him by warranty deed another small parcel of land adjoining the home farm. February 1, 1875, in consideration of one hundred dollars paid by Paine, Lydia, the wife of William Quint, released her right of dower in the home farm. At the same time, William Quint gave Paine his note for $872.34, and Paine gave him back a bond, therein agreeing to convey to him the farm and the other parcel named upon payment by said Quint of the said note. No part of this note has ever been paid. Paine conveyed the premises, and his title has come to William Barron, the de- fendant's father, under whom he is in possession. The plaintiff claims that the deed of January 7, 1868, to Paine, and the bond back to the same parties, constituted a mortgage of the premises, and that the subsequent transac- tions of February 1, 1875, between William Quint and Paine, extinguished the mortgage, thereby letting in the plaintiff's title, upon which he bases this action to recover possession of the premises. While we are of the opinion that the deed and instrument of defeasance executed at the same time and between the same parties constituted a mortgage, we feel confident that the same 284 BUNKER v. BARRON. [Maine, was neither paid nor extinguished by what took place between William Quint and Paine, February 1, 1875. At that time, to be sure, everything due was reckoned up and embraced in the note of $872.34. This included the amount specified in the first bond, the several notes which had been given from year to year as interest on that amount, the sum of about $225 lent the November before, together with interest on all these sums up to the time the note was given. And we may well assume that it contained all the other indebtedness from the Quints contracted between the time when the first bond was given and the time when the note was dated, inasmuch as the first bond provided for the payment of all other debts, in ad- dition to the specific sum therein named, which the obligees should thereafter contract with the obligor, and inasmuch also, as William Quint himself states, that the note was given not only for the sum named in the first bond, but for " all jther indebtedness to said Paine from us." His testimony is that the note was given in payment of all matters between the Quints and said Paine. The question is, whether it was such payment as amounted to an extinguishment of the mort- gage. Paine is dead, and his testimony is not before us. The circumstances surrounding the transaction, taken in connection with the evidence in the case, have an important bearing upon the question, and afford sufficient light by which we are ena- bled, we think, to judge correctly of the intention of the par- ties relative to that transaction. It is the well-settled rule of law in this state, as also in Vermont and Massachusetts, that a negotiable note given for a simple contract debt is prima facie to be deemed a payment or satisfaction of such debt. But it is equally well settled, if not as frequent in its application, that this presumption may be rebutted and controlled by evidence that such was not the intention of the parties: Fowler v. Ludwig, 34 Me. 460; Dodge v. Emerson, 131 Id. 467. From these and many other cases it may be seen that the presumption relates to the intention of the parties, and that such presumption may be rebutted by proof of facts or circumstances under which the negotiable paper was received, showing that it was not intended by the parties to operate as payment. Whenever it may properly be inferred that the parties did not so intend, the court, when in- vested with authority so to do, will ascertain and carry out the intention of the parties. The circumstances which might have such an effect are so Feb. 1887.] BUNKER v. BABRON. 285 numerous, even in the decided cases, that it would not be proper even if it were possible to enumerate them in a single opinion. Of the very many that have been spoken of by the courts, we may properly refer to a few as bearing somewhat upon the questions involved in the case before us. Thus it has been held that where a note is taken in igno- rance of the facts, or under a misapprehension of the rights of the parties, as where the negotiable paper is not binding on all the parties primarily liable, the presumption that it was taken in payment is rebutted: Paine v. Dvrinel, 53 Me. 52; Kidder v. Knox, 48 Id. 555; Melledge v. Boston Iron Co., 5 Cush. 170; 51 Am. Rep. 59; Strang v. Hirst, 61 Me. 15. In a number of the decided cases it has been held that where the debt consists of a note secured by mortgage, the renewal of the note is not to be presumed a payment so as to discharge the mortgage: Taft v. Boyd, 13 Allen, 86; in which case it was held that there is no conclusive presumption that a note and mortgage taken for the amount found due upon a computation of the amounts of former notes secured by mortgages, as well as of mutual claims unsecured by mort- gage, were accepted in payment and discharge of such former notes and mortgages. In Kidder v. Knox, 48 Me. 555, it was laid down as a correct principle of law that whenever it appears that the creditor had other and better security than such note for the payment of his debt, it will not be presumed that he intended to abandon such security and rely upon his note. To the same effect may be cited the case of Lovell v. Wil- liams, 125 Mass. 442, in which the court Bay that the fact that such presumption of payment would deprive the creditor tak- ing the note of the substantial benefit of some security, such us a mortgage, guaranty, or the like, would be sufficient evi- dence to meet and repel the presumption. And the same principle may be found in the following cases: Maneely v. Mc- Oee, 6 Id. 143; 4 Am. Dec. 105; Cowan v. Wheeler, 31 Me. 443; Curtis v. Hubbard, 9 Met. 328; Tucker v. Drake, 11 Allen, 147; Parham Machine Co. v. Brock, 113 Mass. 196. In the case last cited a bond with sureties was given, conditioned that the principal should pay for all purchases made by him from the obligee, and it was held that the bopd remained in force, not- withstanding the obligee received the notes of the principal for purchases made by him. " Taking the notes, therefore," the court say, " did not extinguish the debt or discharge the 286 BUNKER v. BARRON. [Maine, sureties. Even if the notes were treated as payment, the sureties would be held, for they bind themselves in terms to pay all notes given to the plaintiffs by Brock and Delano for machines purchased." Moreover, in another case, where a bond was given, condi- tioned to secure the balance of account, and the debtor gave his negotiable promissory note to the creditor for the amount of the debt, and received a receipt from the creditor for the balance of account, it was held that the note was not in- tended as payment of the debt, or a discharge of the bond: Butts v. Dean, 2 Met. 76; 35 Am. Dec. 389. " The general doctrine is, that the taking of a note is to be regarded as payment only when the security of the creditor is not thereby impaired": Paine v. Dwinel, 53 Me. 54. In many if not most of the cases where the presumption of payment has been held to apply, it will be found that the original claim was not secured. But the cases are numerous in which this presumption has been held to be overcome by the facts and circumstances surrounding the transaction of giving the note, and in addition to those already cited may be added the following as among the more prominent: Varner v. Nobleborough, 2 Me. 125; 11 Am. Dec. 48; Wilkins v. Reed, 6 Me. 221; 19 Am. Dec. 211; Descadillasv. Harris, 8 Me. 304; Mehan v. Thompson, 71 Id. 501; Parkhurst v. Cummings, 56 Id. 159; Perrin v. Keene, 19 Id. 358; 36 Am. Dec. 759; Atkin- son v. Minot, 75 Me. 193; Thurston v. Blanchard, 22 Pick. 18; 33 Am. Dec. 700; Appleton v. Parker, 15 Gray, 174; Grimes v. Kimball, 3 Allen, 520; Holmes v. First Nat. Bank, 126 Mass. 359; Dana v. Binney, 7 Vt. 493; Seymour v. Darrow, 31 Id. 122. The facts in this case irresistibly repel the presumption that the note was intended as payment and discharge of the secu- rity of January 7, 1868. Not one dollar was paid at the time the note was given. Nor is it pretended that a dollar has actually ever been paid upon the mortgage since its first ex- istence to the time this suit was brought. That mortgage was a lien upon the home farm. The mortgagee, on the very day the note was given, purchased the prospective right of dower from the wife of one of the mortgagors, paying therefor one hundred dollars. For what purpose, it may well be asked, was this purchase of the prospective right of dower in the farm from the wife of William Quint, if the intention of the mortgagee was, in taking the note in question, to release and Feb. 1887.] BUNKER v. BARRON. 287 discharge his mortgage which he then held upon it? If he was a stranger to any title in the farm at the time he received the deed of the wife's dower, certainly it would amount to nothing to him, as nothing would thereby pass by such deed: Harri- man v. Gray, 49 Me. 537. It is apparent from the transactions that the parties under- stood and intended, when the note was given, that the mort- gagee should retain his title till the debt was paid. This is shown not only from the fact that the mortgagee at that time purchased in the dower interest, but also from the fact that in the bond given at that time the title to the farm is therein recognized as still remaining in the mortgagee. Nor could it be reasonably supposed that had not such been the under- standing of the parties, the mortgagee would have been will- ing to release the most valuable security, and rely alone upon the individual name of William Quint and a piece of real estate which had but recently been purchased for the sum of $225. This understanding and intention is also manifest from the fact that when the indebtedness of the Quints was reckoned up, and the note taken, and new bond given, there was no cancellation or surrender of the bond of January 7, 1868, neither was there any conveyance made or asked for in accordance with the terms of that bond: Watkins v. Hill, 8 Pick. 523. In view of these facts and circumstances, together with the evidence before us, it is impossible to arrive at any other con- clusion than that it was the intention of the parties, by their transactions of February 1, 1875, to leave the former security unaffected, and that the note was not intended as payment of the debt due at that time. There was a change in the form of the debt, but there was no actual payment of it. That is not enough to affect the mortgage. Nothing but payment of the flebt, or its release, will discharge a mortgage: Crosby v. Chase, 17 Me. 369; Parkhurst v. Cummings, 56 Id. 159; Ladd v. Wiggin, 35 N. H. 426; 69 Am. Dec. 551. " The mortgage remains a lien until the debt it was given to secure is satis- fied, and is not affected by a change of the note, or by giving a different instrument as evidence of the debt": Jones on Mortgages, sec. 924; Pomroy v. Rice, 16 Pick. 24. At the time the plaintiff acquired his mortgage from William Quint, neither of the bonds which had been given by Paine had been recorded, and the apparent record title to the prem- ises was in John 8. Paine. The bonds were not placed upon 288 HUDSON v. COE. [Maine, record till May 26, 1876, more than a year and eight months after the plaintiff's title accrued, and then by his procure- ment. Moreover, as late as February 24, 1879, the plaintiff appears to have understood that Fame's mortgage was a valid, subsisting claim upon the premises, and that he held only the right of redemption under it, as appears by his statements in writing contained in the notice and demand by him on Paine's administrator for an account of the sum due on the mortgage. Paine's interest passed and became vested in William Bar- ron, who is in possession, as the evidence discloses, by his agent or servant, the defendant in this suit. The rights of the defendant are the same, therefore, as those of the person whom he represents by that possession. This action could not be maintained by the mortgagor against the mortgagee or his assignee in possession without showing a satisfaction of the mortgage. Neither can it be maintained by the grantee of the mortgagor: Woods v. Woods, 66 Me. 206; Jewett v. Ham- lin, 68 Id. 172; Rowell v. Jewett, 71 Id. 409. Judgment for the defendant. CONVEYANCE ABSOLUTE IN TERMS, accompanied by a separate defeasance, ia a mortgage: Manufacturers' etc. Bank v. Bank of Pennsylvania, 42 Am. Dec. 240, and note 246; Stephens v. Sherrod, 55 Id. 776, and note 782. NOTE GIVEN FOB SIMPLE CONTRACT DEBT is prima facie evidence of pay- ment: Shumway v. Reed, 56 Am. Dec. 679, and note 681. That such evi- dence may be rebutted by showing the intention of the parties, see Id.j Melkge v. Boston Iron Co., 51 Id. 59, and note 73. NOTE GIVEN FOR ANTECEDENT DEBT is not payment of it: Weymouth v. 5an- born, 80 Am. Dec. 144, note 149; Blunt v. Wattxr, 78 Id. 709, and note 718; McMurray v. Taylor, 77 Id. 611, and note 613; Nightingale v. Chaffee, 22 Am. Rep. 531. MORTGAGE CAN ONLY BE DISCHARGED by payment or by release: Sndthv. Stanley, 58 Am. Deo. 771, note 773; Ladd v. Wiggin, 69 Id. 551, and note 559. HUDSON v. COE. [79 MAINE, 88.] TENANT IN COMMON MAY MAINTAIN ACTION OP INDEBITATUS ASSUMPSIT against his co-tenant who has received more than his share of the rents and profits, and this, independently of section 20, chapter 95, of the Re- vised Statutes of Maine. DISPUTE IN TITLE WILL NOT PREVENT TENANT IN COMMON from maintain- ing an action of indebitatua assumpsit against his co-tenant for receiving more of his share of the rents and profits, if the plaintiff was not dis- seised of his estate at the date when such rents and profits were received. Feb. 1887.] HUDSON v. COE. In ACTION OP INDEBITAI-US ASSUIHPSIT by one tenant in common against another, the plaintiff cannot recover any rents and profits received by defendant before plaintiff's title accrued. ONB CO-TENANT DOES NOT DISSEISE ANOTHER by entering upon the land under a tax deed, and exercising such acts of ownership as tracing and running lines, paying taxes, and permitting wild grass, and occasionally timber, to be cut from year to year on various portions thereof. ENTRY OF ONE CO-TENANT is ENTRY or ALL. POSSESSION OP ONE CO-TENANT is ALWAYS PRESUMED to be in accordance with a common title until some notorious and unequivocal act of exclu- sion occurs. ASSUMPSIT by one tenant in common against his co-tenant to recover a share of stumpage collected by the defendant from the lands of the co-tenancy. Charles A. Bailey, for the plaintiff. A. W. Paine, fot the defendant. By Court, FOSTER, J. The parties to this suit are tenants in common and undivided of township number 2, range 8 north, of Waldo patent in Penobscot County, containing about thirty-six square miles. The plaintiff claims to recover, as owner of eleven ninety-sixths, his share of stumpage, which; the defendant, as part owner of the township, has collected and: retains in his hands. The action is general indebitatus as- sumpsit for money had and received, and is brought, not upon Revised Statutes, chapter 95, section 20, relating to actions be- tween tenants in common, but at common law, based upon the statute of 4 & 5 Anne, c. 16, which is declared to be a part of the common law of this state: Richardson v. Richardson, 72 Me. 403. 1. The defendant contends that the plaintiff has no remedy at common law, and that if entitled to any, it can exist only by virtue of the Revised Statutes, chapter 95, section 20, after demand in a special action of assumpsit. We are not inclined to this view, and such, we think, is not the law. The ancient rule of the old common law, as laid down by Lord Coke (Co. Lit. 199 b), was, that one tenant in common could not maintain an action against his co-tenant for taking the whole profits of the common estate, unless he had been appointed bailiff by his co-tenant. It was thus stated: "If one tenant in common maketh his companion his bailiff of his part, he shall have an action of account against him. Hut, although one tenant in common, without being made bailiff, take the whole profits, no action of account lies against him; AM. ST. REP., VOL. I. 19 290 HUDSON r. COE. [Maine, for, in an action of account, he must charge him either as a guardian, bailiff, or receiver, which he cannot do unless he con- stitute him his bailiff." Sole occupancy alone was not sufficient upon which to maintain an action. Each was said to occupy per mi ct per tout, and had a right to occupy the whole, if the other tenant did not see fit to go in and occupy with him. Such occupancy was held to be no exclusion of the other, and no action would lie against the tenant who, by such occu- pancy, had taken the entire profits. But by statute 4 & 5 Anne, c. 16, sec. 27, this old doctrine of the common law of England was changed, and it was therein provided that an action of account might be maintained by one joint tenant or tenant in common against the other, charging him as bailiff for receiving more than his joint share or proportion. But in order to maintain such action, it was necessary that one ten- ant should show, not mere occupation of the premises by an- other tenant in common, but an actual receipt by him of the rents and profits over and above his share thereof, and which actually belonged to his co-tenant. To avoid the somewhat tedious proceedings pertaining to the old action of account, an action on the case upon a promise to account was at first substituted: Brigham v. Eveleth, 9 Mass. 541; and afterwards Lord Holt, in construing the statute, came to the conclusion that whenever account could be maintained, indebitatus as- sumpsit might be also; holding that the statute, being a reme- dial one, it ought to receive a liberal construction: Jones v. Harraden, 9 Id. 540. While the right of action was founded on the statute of Anne, and not by any right under the old common law, from the liberal construction placed upon it by a long series of decisions, it became as firmly settled that the action of general indebitatus assumpsit for money had and re- ceived would lie, in place of the old action of account, by one tenant in common against his co-tenant, as bailiff, for receiv- ing more than his share of the rents and profits. Such was the doctrine laid down in the cases to which we have referred; and this form of action was sustained in Miller v. Miller, 7 Pick. 133, 19 Am. Dec. 264, and 9 Pick. 34, to recover money due for the share of one tenant in common in the sale of trees from the common estate. It was allowed in Monroe v. Luke, 1 Met. 459, which was assumpsit by one tenant in common against his co-tenant to recover his share of rents; and it was there held that where it was a claim for money actually re- ceived by the defendant, to which in some form the plaintiff Feb. 1887.] HUDSON v. COE. 291 has title, it could be conveniently settled in this form of ac- tion. It is said in Fanning v. Chadwick, 3 Pick. 424, 15 Am. Dec. 233, that the action of account has become nearly obso- lete in England, and that there seems to be no necessity for reviving it here, and that assumpsit now has all the advan- tages, without the disadvantages, peculiar to an action of account. In support of the same principle may be cited Cochran v. Carrington, 25 Wend. 410; Richardson v. Richard- son) 72 Me. 403; Gowen v. Shaw, 40 Id. 58; Cutler v. Currier, 54 Id. 91; Holmes v. Hunt, 122 Mass. 513; 23 Am. Rep. 381; Sargent v. Parsons, 12 Mass. 152; Dickinson v. Williams, 11 Gush. 258; 59 Am. Dec. 142. It is an equitable form of ac- tion to recover money which the defendant, in equity and good conscience, ought not to retain. But when resorted to as the common-law action, the out- growth of the statute of Anne, and independently of the Re- vised Statutes, chapter 95, section 20, by one tenant in common against his co-tenant, it is to be " restricted to cases where the money has been actually received, and the liability to account has resulted in a duty- to pay money, or where the defendant holds the share as bailiff of the plaintiff, or the oc- cupation has been by consent": Cutler v. Currier, 54 Me. 91. 2. It is also claimed in defense that this action cannot be sustained, because the question of title is involved in it. But we have no doubt the action will lie, notwithstanding there may be a mere dispute raised by the defendant concerning the title, provided the plaintiff is owner of the estate, and was not disseised at the date when the income from the common estate was received in money by the defendant. Such is the con- clusion of this court in the recent case of Richardson v. Rich- ardson, supra. Were it otherwise, the plaintiff in any case seeking his common-law remedy under the statute of Anne, notwithstanding his title and seisin be complete, might be subjected to the annoyance as well as expense of a nonsuit, whenever the defendant co-tenant might see fit to dispute his title. We do not mean to be understood as denying the gen- oral doctrine, where it has its proper application, that the title to real estate is not to be tried in an action of assumpsit; but we are satisfied that it has no application in the present case. It must also be borne in mind that this is not an action for use and occupation of the common estate under the Revised Statutes, chapter 95, section 20, which is a modifica- tion of the statute of Anne, but of indebitatus assumpsit au- 292 HUDSON v. COE. [Maine, thorized, through a long line of decisions, by the latter statute as the common-law action to recover the plaintiff 's due pro- portion of moneys in the hands of the defendant which he has received from the common estate. Many of the decisions to which our attention has been called, and in which it is held that the title to real estate cannot be tried in an action of assumpsit, are those for use and occupa- tion depending upon contract, express or implied, between the parties, and which have no application to the case at bar. There are many cases where the right to recover depends upon the title, yet they are not cases in which the title is tried, within the meaning of the rule. Neither does the rule prevent an action for money had and received in many cases which require an investigation of title, as was held in Pickman v. Trinity Church, 123 Mass. 6; 25 Am. Rep. 1. The plaintiff in this action undoubtedly has the right to show his title and seisin to the estate owned by him at the time when the defendant received the income. Upon proof of these facts he would be entitled to his remedy under the stat- ute of Anne. " If the defendant were in possession of the estate under a denial of the plaintiff's title, it would be evi- dence tending to show the disseisin of the plaintiff, and if it resulted in proof of that fact, as it might well do if unex- plained, then, and not till then, would the relative position of the parties be changed": Richardson v. Richardson, supra. To make out his title, then, the plaintiff starts with the unquestioned title to five ninety-sixths of the township by deeds from the heirs of Henry Ilsley who was the owner of one sixteenth in common and undivided in 1839; and to six ninety-sixths by levy of an execution upon a judgment -recov- ered in the United States circuit court for the district of Maine, at the October term, 1841, in favor of the Merchants' National Bank of Newburyport, against Beth Paine and John L. Me- serve, and from said bank through sundry conveyances to himself by deed bearing date of July 1, 1884. It is in reference to the plaintiff's title under this levy that the defendant takes issue with the plaintiff, and a consider- able portion of the argument of counsel has been devoted to this branch of the case. We do not deem it necessary, how- ever, to enter upon an investigation of title under the levy, inasmuch as it is not claimed that the plaintiff obtained any title to the six ninety-sixths therein mentioned till July 1, 1884, several months after the stumpage had been taken off, Feb. 1887.] HUDSON v. COE. 293 and the money had been received by the defendant. If other- wise entitled to recover, the plaintiff can recover only his due proportion of such money as was received by the defendant from stumpage sold after his title accrued: Kimball v. Lewis- ton Steam Mill Co., 55 Me. 499. From an examination of the deeds from the heirs of Henry Ilsley, it will be seen that the plaintiff at that time had acquired title to only four ninety- sixths of the township. 3. Admitting, however, the plaintiff's title through deeds from the heirs of Ilsley, the next ground of defense interposed to the plaintiff's action is that he and his predecessors in title Lave been disseised by the defendant and Samuel H. Blake, the other tenant in common, and that they have acquired by adverse possession for more than twenty years title to the whole township, and are entitled to retain the entire stumpage. To establish this claim of disseisin, the defendant, who was the admitted owner of seven sixteenths and his alleged joint disseisor of another seven sixteenths, the two owning seven eighths of the whole township, puts in a tax title acquired by themselves of the entire township, and claims under this re- corded deed, as color of title, a disseisin of their co-tenants. The evidence upon which this claim of adverse possession and disseisin is based is detailed by the defendant, in sub- stance, consisting of acts of ownership exercised over this town- ship, such as tracing and running lines, keeping off trespassers, permitting wild grass to be cut from year to year from small portions of it, and occasionally timber from other portions, paying taxes, etc. This whole township of thirty-six square miles was principally forest and timber land, all in its natural and unimproved state. The question we are asked to consider in this case certainly presents the doctrine of dis- . seisin somewhat diffusively applied. The cases are numerous, however, where acts even stronger than are furnished in this case are declared to be insufficient to work a disseisin even of the sole owner of unimproved lands: Chandler v. Wilson, 77 Me. 76; Slater v. Jepherson, 6 Gush. 129; Parker v. Parker, 1 Allen, 245; Little v. Afegquier, 2 Me. 178; Thompson v. Bur- ham, 79 N. Y. 98, 99. But acts which would properly be held to constitute a dis- seisin if done by a stranger have no such effect if done by a tenant in common, as the possession of one tenant in common is that of all. The entry of one is the entry of both. Either has the right to actual possession, and such possession will be 294 HUDSON v. COE. [Maine, presumed to be in accordance with his title, rightful rather than wrongful, till some "notorious and unequivocal act of exclusion shall have occurred ": Colburn v. Mason, 25 Me. 434; 43 Am. Dec. 290. And by all the authorities it is settled that mere possession, accompanied by no act that can amount to an ouster of the other co-tenant, or give notice to him that such possession is adverse, will not be held to amount to a disseisin of such co-tenant: McClung v. Ross, 5 Wheat. 124. The acts of ownership by one tenant, which if done by a stranger would operate as a disseisin of the other co-tenant, must be done, as was said in Ingalls v. Newhall, 139 Mass. 273, "in the asser- tion of an independent title, inconsistent with that of the co- tenant, and be of such character that it is, or must reasonably be held to be, known by those in derogation of whose title they are done that this is so." And it has been held that the entry of a tenant in common upon property, even if he takes the rents, cultivates the land, or cuts the wood and timber without accounting or paying for any share of it, will not ordinarily be considered as adverse to his co-tenants and an ouster of them, but in support of the common title: Thornton v. For A; Bank, 45 Me. 158. This principle has been thus expressed by the Vermont court in the case of Roberts v. Morgan, 30 Vt. 325, in which the court say: "Where one joint owner is in possession of the whole, the legal presumption is, that he is keeping possession, not only for himself but for his co-tenant, according to their respective interests, and the other joint owners have the right to so understand until they have notice to the contrary; and the statute would only run from the time of such notice. We consider the principle substantially the same as between land- lord and tenant, as to converting a mere fiduciary possession into an adverse or hostile one." The nature of the property in which the tenants are owners its character, situation, and extent must be taken into consideration, moreover, in determining the question of pos- session and occupation, and whether it is exclusive or other- wise. And between tenants in common it is very difficult to determine by any fixed rule what may constitute disseisin. Each case must be judged by its ovm particular circumstances and the facts connected with it. In this case the facts are plain, and there is but little con- troversy concerning them. Nor do we consider it necessary to extend this opinion by any further reference to them. As- March, 1887.] KNAPP v. BAILEY. 295 suming them all to be true, they do not show such exclusive possession, or such notorious and unequivocal acts of exclu- sion, as to amount to a disseisin of the plaintiff or his prede- cessors in title. The action, therefore, is maintainable. The defendant admits that he received a certain amount of money from the sale of stumpage in the fall and winter of 1883-*84. That sum was $691.79. At the time this stumpage was taken from the township, the plaintiff had acquired title to only four ninety-sixths of it, and that is the proportion to which he is entitled of the money in the defendant's hands. Judgment for plaintiff for $28.82, with interest thereon from the date of the writ. AsstrMPsrr WILL LIB BY ONB CO-TENANT against the other to recover hia share of the rents and profits: Piquet v. Allison, 86 Am. Dec. 54, and note; Crane v. Waggoner, 89 Id. 493; Bruce v. Hastings, 98 Id. 592, and note 595; Early v. Friend, 78 Id. 649, note on the subject 665; Israel v. Israel, 97 Id. 571. ENTRY OF ONE CO-TENANT inures to the benefit of all: Gossom v. Donald- ton, 68 Am. Dec. 723; WarfieU v. Lindell, 77 Id. 614. POSSESSION OF ONE CO-TENANT is presumed not to be adverse to his co- tenant: Berthold v. Fox, 98 Am. Dec. 243, and note 247; H alley v. Hawley, 94 Id. 350, note 358; Bernecker v. Miller, 93 Id. 309, note 311. And to rebut guch presumption, actual ouster must be shown: Israel v. Israel, 96 Id. 571, and note 576. KNAPP v. BAILEY. [79 MAINB, 196.] GRANTOR is COMPETENT WITNESS AGAINST HIS GRANTEE to prove that the conveyance under which he had acquired an apparent title was given to secure a debt, and therefore constituted an equitable mortgage. CONVEYANCE MAY IN EQUITY BE CONTROLLED BY ORAL EVIDENCE showing that it was given and received merely as security for a debt. NOTICE OF TRUST. Provision of the revised statutes of Maine, declaring that a purchaser for a valuable consideration cannot be defeated by a trust of which he has no notice, means actual notice. ACTUAL NOTICE MAY BE EITHER EXPRESS OR IMPLIED. IMPLIED NOTICE is IMPUTED TO PARTY shown to be conscious of having means of knowledge which he does not use, as where he chooses to remain voluntarily ignorant, or is grossly negligent in not pursuing inquiries suggested by known facts. ACTUAL NOTICE MAY BE PROVED BY DIRECT EVIDENCE, or inferred froai circumstances. ONE is CHARGEABLE WITH ACTUAL NOTICE OF FACTS, if he has knowledge of such facts as would lead a fair and prudent man to make further in- quiries, and if such inquiries, if pursued with ordinary diligence, would 296 KNAPP v. BAILEY [Maine, have given him knowledge of the facts, with notice of which he is sought to be charged. PURCHASER is CHARGED WITH NOTICE that his grantor held title by what equity must declare to be an invalid deed, when such grantor was out of and had never been in possession, and others had controlled the property in many ways for many years, and when an examination of the registry of deeda would have shown conveyances inconsistent with the full valid- ity of the deed under which the grantor claimed, and when the purchase was for a grossly inadequate price. FACT THAT PURCHASER ACCEPTS QUITCLAIM DEED is a circumstance entitled to consideration in determining whether he is a bonajtde purchaser with- out notice. BILL to remove a cloud from title. The cloud consisted of a conveyance which the plaintiff insisted was given and ac- cepted to secure the payment of a debt which had subsequently been paid. A. W. Paine and C. P. Stetson, for the plaintiff. D. F. Davis and Charles A. Bailey, for the defendant. By Court, PETERS, C. J. This bill seeks to remove a cloud overhanging complainant's title to an undivided parcel of land, in effect, to redeem the land from an equitable mort- gage, the allegation being that the debt has been paid. We can have no reasonable doubt of the facts thus far alleged. The defendant's grantor was called as a witness by the com- plainant. The defendant contends that his testimony was .inadmissible, and cites cases which sustain the ordinary prin- ciple that a grantor cannot dispute with his grantee the title which he has assumed to convey. The objection goes to the testimony, and not to the witness personally. The principle of estoppel, which is invoked, is aimed, not against the wit- ness because he is a grantor, but against any oral testimony to contradict the terms of a deed. As said by Judge Curtis, in answer to the same objection, "the facts to be proved were dehors the record, and one witness was as competent, in point of law [to prove them], as another." Where a grantor is al- lowed to prove a fact by another, he may do so by himself: Jlolbrook V.Worcester Bank, 2 Curt. 246, It is true, as a general rule, that the effect of a deed cannot be controlled by oral evidence. But among the exceptions to the rule is, that, in equity, where the proof is clear and con- vincing, a deed absolute on its face may be construed to be an equitable mortgage. In Rowell v. Jewett, 69 Me. 293, this ex- ceptional doctrine was first allowed to have operation in this March, 1887.] KNAPP v. BAILEY. 297 state. It was mlly accepted in Stinchfield v. Milliken, 71 Id. 567, where the opinion says: " But the transaction was in equity a mortgage, an equitable mortgage. The criterion is the intention of the parties. In equity, this intention may be ascertained from all pertinent facts, either within or without the written parts of the transaction. Where the intention is clear that an absolute conveyance is taken as a security for a debt, it is in equity a mortgage. The real intention governs." In Lewis v. Small, 71 Me. 552, the same doctrine is admitted. It has since been affirmed in other cases, receiving an able discussion in the late case of Reed v. Reed, 75 Id. 264. The effect of many of the older cases in this state has been swept away by this new principle in our legal system, a product of the growth of the law, very greatly promoted by legislative stimulation. The present case must be governed by the equi- table rule declared in the later decisions. Another question presented by the case is, whether the statutory provision (R. S., c. 73, sec. 12) which declares that a title of a purchaser for a valuable consideration cannot be defeated by a trust, unless the purchaser had notice thereof, means actual or constructive notice. Section 8 of the same chapter requires " actual notice " of an unrecorded deed to defeat a subsequent purchaser's title from the same grantor. The two sections were incorporated in our statutory system at the same time, in the revision of 1841. One requires "no- tice," the other " actual notice." We think the difference in phraseology may be accounted for partly on the idea that section 8 would be applicable more to law cases, and section 12 more to questions in equity. We can have no doubt that there may be cases of constructive trusts where section 12 would apply. At the same time where the facts present questions analogous to those ordinarily aris- ing under the other section, we think actual notice would be required; that under either section, in cases generally, actual notice, as we understand the meaning of the term, would be the rule; and that actual notice applies in the present case. There is a conflict in the cases and among writers as to what is actual notice. Much of the difference is said to be verbal only, more apparent than real. Certain propositions, however, are quite well agreed upon by a majority of the authorities. Notice does not mean knowledge, actual knowledge is not required. Mr. Wade describes the modes of proving actual 298 KNAPP v. BAILEY. [Maine, notice as of two kinds. One he denominates express notice, and the other implied. " Implied, which imputes knowledge to the party because he is shown to be conscious of having the means of knowledge, though he does not use them. In other words, where he chooses to remain voluntarily ignorant of the fact, or is grossly negligent in not following up the inquiry which the known facts suggest ": Wade on Notice, 2d ed., sec. 5. Some writers use the word "implied" as meaning construc- tive, and would regard what is here described to be implied actual notice as constructive notice merely. As applicable to actual notice, such as is required by the sections of the statute under consideration, we think the classification of the author, whom we quote, is satisfactory. The author further explains the distinction by adding that " notice by implication differs from constructive notice, with which it is frequently confounded, and which it greatly re- sembles, with respect to the character of the inference upon which it rests; constructive notice being the creature of posi- tive law, or resting upon strictly legal inference, while implied notice arises from inference of fact." It amounts substantially to this, that actual notice may be proved by direct evidence, or it may be inferred, or implied (that is, proved), as a fact from indirect evidence, by cir- cumstantial evidence. A man may have notice, or its legal equivalent. He may be so situated as to be estopped to deny that he had actual notice. We are speaking of the statutory notice required under the conveyances act. A higher grade of evidence may be necessary to prove actual notice appertaining to commercial paper: Kellogg v. Curtis, 69 Me. 212; 31 Am. Rep. 273. The same facts may sometimes be such as to prove both con- structive and actual notice; that is, a court might infer con- structive notice, and a jury infer actual notice from the facts. There may be cases where the facts show actual, when they do not warrant the inference of constructive notice; as where a deed is not regularly recorded, and not giving constructive notice, but a second purchaser sees it on the records, thereby receiving actual notice: Hastings v. Cutler, 24 N. H. 481. Mr. Pomeroy (2 Eq. Jur., sec. 596, note) summarizes the effect of the American cases on the point under discussion in the following words: "In a few of the states the courts have interpreted the intention of the legislature as demanding that the personal information of the unrecorded instrument should March, 1887.] KNAPP v. BAILEY. 299 be proved by direct evidence, and as excluding all instances of actual notice established by circumstantial evidence. In most of the states, however, where this statutory clause is found, the courts have defined the ' actual notice ' required by the legislature as embracing all instances of that species in contradistinction from constructive notice, that is, all kinds of actual notice, whether proved by direct evidence or inferred as a legitimate conclusion from circumstances." The doctrine of actual notice implied by circumstances (actual notice in the second degree) necessarily involves the rule that a purchaser, before buying, should clear up the doubts which apparently hang upon the title by making due inquiry and investigation. If a party has knowledge of such facts as would lead a fair and prudent man, using ordinary caution, to make further inquiries, and he avoids the inquiry, he is chargeable with notice of the facts which, by ordinary diligence, he would have ascertained. He has no right to shut his eyes against the light before him. He does wrong not to heed the " signs and signals " seen by him. It may be well concluded that he is avoiding notice of that which he in reality believes or knows. Actual notice of facts which, to the mind of a prudent man, indicate notice, is proof of notice: 3 Washburn on Real Property, 3d ed., 335. It must be admitted that our present views are not fully supported by the case of Spofford v. Weaton, 29 Me. 140, a de- cision made forty years ago. But the doctrine has grown liberally since that day, and the correctness of some things pronounced in that opinion is virtually denied in subsequent cases: Porter v. Sevey, 43 Id. 519; Hull v. Noble, 40 Id. 459; Jones v. McNarrin, 68 Id. 334; 28 Am. Rep. 66. Many cases which affirm the doctrine contended for by the complainant, as well as many opposing cases, are cited by the text-writers: Wade on Notice, sees. 10, 11, et seq., and cases in notes; 2 Pomeroy's Eq. Jur., sec. 603, and notes. The decided pre- ponderance of authority supports the position that the statu- tory " actual notice " is a conclusion of fact, capable of being established by all grades of legitimate evidence. As to what would be a sufficiency of facts to excite inquiry, no rule can very well establish; each case depends upon its own facts. There is a great inconsistency in the cases upon this point. But we are satisfied that in the case before us the defendant must be charged with notice that his grantor held title by what equity must declare to be an invalid deed. He 300 KNAPP v. BAJLEY. [Maine, saw that the grantor was out of possession. He could have easily ascertained that he never had possession. He knew that others had controlled the property in many ways for many years. He examined the registry, where he discovered the deed in question, and there must have seen evidence of other conveyances inconsistent with its full validity. He purchased the property for forty dollars, while worth, had the title been perfect, nearer one thousand dollars. He took a quitclaim deed, and it is held Ly some courts that such an instrument of conveyance does not make him a bonafide pur- chaser without notice: Baker v. Humphrey, 101 U. S. 494; al- though in our system it is a circumstance only bearing on the question: Mansfield v. Dyer, 131 Mass. 200. More than all else, perhaps, the defendant made no inquiry of the grantor whether he had any real title or not, asking no explanations, but insisting to him that he had no valuable title. It is im- possible for us to say, in the light of these impressive, illumi- nating proofs, that the defendant purchased without notice. He purchased on the basis of a merely nominal title. We would not say that he did not believe he could legally purchase, encouraged as he was by the doctrine of the earlier cases, now abrogated; nor do we impute more than a want of caution and diligence. Men's interests spur their judgments to one-sided conclusions oftentimes. The great dramatist makes a character, reluctant to acknowledge the situation, eay, "I cannot dare to know that which I know "; while an- other, more quick-sighted, because anxious to believe, exclaims, " Seems, madam! Nay, it is. I know not seems." One re- jects proof on the clearest facts; the other accepts it on the slightest. Judgment affirmed. NOTICE MAY BE EITHER EXPRESS OR IMPLIED: McMechcm v. Oriffing, 15 Am. Dec. 198. ACTUAL NOTICE, WHAT FACTS SUFFICIENT TO CONSTITUTE: Lodge v. Si- monton, 23 Am. Dec. 36, and extended note 47; Hoy v. Bramhall, 97 Id. 687, and note 695; Allen v. McCa.Ua, 96 Id. 56, note 64; Gibson v. Winslow, 84 Id. 553, note 556. IMPLIED OR CONSTRUCTIVE NOTICE FROM WHAT ARISES: Note to Lodgt v. Simonton, 23 Am. Dec. 47; Converse v. Blumrich, 90 Id. 230, note 242. ACTUAL NOTICE MUST BE SHOWN BY CLEAR PROOF: McMechan v. Griffing, 15 Am. Dec. 198. ACTUAL NOTICE OF TRUST MUST BE CLEARLY PROVED: Wilson v. McCul- lough, 63 Am. Dec. 347. PURCHASER FROM ONE NOT IN POSSESSION LJ chargeable with what notice and duty: Smith v. Tfe, 89 Am. Dec. 167, and note 171, 172. March, 1887.] TAYLOR v. CAELJSLE. 301 TYLER v. CARLISLE. [79 MAINE, 210.J MONEY LOANED WITH INTENT ON PART OF LENDER that it shall be used for gambling purposes by the borrower cannot be recovered if so used. MONET LOANED FOB GAMBLING PURPOSES, but not so used by the borrower, may be recovered of him by the lender. ASSUMPSIT for money loaned by plaintiff to defendant. De- fendant claimed that it was a gambling debt. The instruc- tions to the jury sufficiently appear from the opinion. Verdict for defendant. C. E. Littlefield, for the plaintiff. J. E. Hanley, for the defendant. By Court, PETERS, C. J. The plaintiff claims to recover a sum of money loaned by him while the defendant was engaged in playing at cards. The ruling at the trial was, that if the plaintiff let the money with an express understanding, inten- tion, and purpose that it was to be used to gamble with, and it was so used, the debt so created cannot be recovered; but otherwise, if the plaintiff had merely knowledge that the money was to be so used. Upon authority and principle the ruling was correct. Any different doctrine would in most instances be imprac- ticable and unjust. It does not follow that a lender has a guilty purpose merely because he knows or believes that the borrower has. There may be a visible line between the motives of the two. If it were not so, men would have great responsibilities for the motives and acts of others. A person may loan money to his friend, to the man, and not to his purpose. He may at the same time disapprove his purpose. He may not be willing to deny his friend, however much dis- approving his acts. In order to find the lender in fault, he must himself have an intention that the money shall be illegally used. There must be a combination of intention between lender and bor- rower, a union of purposes. The lender must in some man- ner be a confederate or participator in the borrower's act, be himself implicated in it. He must loan his money for the express purpose of promoting the illegal design of the borrower; not intend merely to serve or accommodate the man. In support of this view many cases might be adduced. A few prominent ones will suffice: Green v. Collins, 3 Cliff. 494; 302 TAYLOR v. CARLISLE. [Maine, Oaylord v. Soragen, 32 Vt. 110; 76 Am. Dec. 154; Hill v. Spear, 50 N. H. 252; 9 Am. Rep. 205; Peck v. Briggs, 3 Denio, 107; Mclntyre v. Parks, 3 Met. 207; Banchor v. Mamel,47 Me. 68; see 68 Id. 47. .Nor was the branch of the ruling wrong, that plaintiff, even though a participator, could recover his money back, if it had not been actually used for illegal purposes. In minor offenses, the locus penitentiss continues until the money has been actu- ally converted to the illegal use. The law encourages a re- pudiation of the illegal contract, even by a guilty participator, as long as it remains an executory contract, or the illegal pur- pose has not been put in operation. The lender can cease his own criminal design, and reclaim his money. "The reason is," says Wharton, " the plaintiff's claim is not to enforce, but to repudiate, an illegal contract": Wharton on Contracts, sec. 354, and cases there cited. The object of the law is to protect the public, not the parties. " It best comports with public policy to arrest the illegal transaction before it is consum- mated," says the court in Stacy v. Foss, 19 Me. 335; 36 Am. Dec. 755; see White v. Franklin Bank, 22 Pick. 181. The rule allowing a recovery back does not apply where the lender knows that some infamous crime is to be committed with the means which he furnishes. It applies onlv where the minor offenses are involved. Exceptions overruled. To INVALIDATE LOAN FOR GAMBLING PURPOSES, the lender must not only have known the use intended, but must have been implicated as a confeder- ate, though not necessarily for gain: Waugh v. Beck, 60 Am. Rep. 354; and eee Hardy v. Hunt, 70 Am. Dec. 787, and note 791. In Morgan v. Oroff, 49 Id. 273, it is held that money so loaned cannot be recovered though not used. In Lewin v. Johnson, 32 Hun, 408, it was held that it is no defense to an action for the purchase price of whisky that the purchaser, an innkeeper, having no license, intended to sell the same by the glass, in violation of the excise law, and that the seller knew that he had no license, and intended so to sell the whisky purchased. The court said: "The question presented is, whether the prior knowledge by a vendor of merchandise that the purchaser intends to make an unlawful use of the articles sold will prevent a recovery of the purchase price. It is now well settled by the authorities in this state that it will not. The precise question was presented and decided in Tracy v. Tal- mage, 14 N. Y. 162 [67 Am. Dec. 132], where the court laid down this propo- sition: 'That it ig no defense to an action brought to recover the price of goods sold that the vendor knew that they were bought for an illegal pur- pose, provided it is not made a part of the contract that they shall be used for that purpose, and provided, also, that the vendor has done nothing in aid or furtherance of the unlawful design. .... I think it clear in reason, aa well as upon authority, that in a case like this, where the sale is not necea- March, 1887.] TUFTS v. SYLVESTER. 303 sarily per se a violation of law, unless the unlawful purpose enters into and forms a part of the contract of sale, the vendee cannot set up his own illegal intent in bar of an action for the purchase-money.' This statement of the law remains undisturbed and unquestioned, and has been frequently referred to since by the same court with approval. In Arnott v. Pittston and Elmira Coal Co., 68 N. Y. 558, 23 Am. Rep. 190, the rule of law on the question before us was stated to be the same as laid down in Tracy v. Talmage, and substan- tially in the same language, to wit: 'A vendor of goods may recover for their price, notwithstanding that he knows that the vendee intends an improper nse of them, so long as he does nothing to aid in such improper use, or in the illegal plan of the purchaser. ' An English case, Hodgson v. Temple, 5 Taunt. 181, directly in point, may be cited, which gives the law in England on the game question. In thia case, a buyer of spirituous liquors was known to be carrying on a rectifying distillery and a liquor shop at the same time, con- trary to law. The vendors of the spirits were allowed to recover the price. Sir James Mansfield said: ' The merely selling goods, knowing that the buyer will make an illegal use of them, is not sufficient to deprive the vendor of his just right of payment, but to effect that, it is necessary thatithe vendor should be a sharer in the illegal transaction. ' In other English cases the same rule of law is stated, some of them being cited and commented upon and ap- proved in Tracy v. Talmage, supra. The learned counsel for the defendant cites us to the cases of Hull v. Ruggles, 56 N. Y. 424, and Arnott v. Pittston and Elmira Coal Co., 68 Id. 558, 23 Am. Rep. 190, in support of his position that the sellers are particeps criminisvrith the purchaser in his illegal purpose and transactions. On a careful examination of these cases, it will be observed that in each instance the suit was to recover the contract price of goods sold, the court holding that the contract in terms was to do an unlawful and illegal act. The court at the same time remarking that the cases were distinguish- able from Tracy v. Talmage, and the law as there stated approved ": See Brunswick v. Valleau, 50 Iowa, 120; 32 Am. Rep. 119, and note 122; Wallace v. Lark, 12 S. C. 576; 32 Am. Rep. 516; Henderson v. Waggoner, 2 Lea, 133; 31 Am. Rep. 591; Feineman v. Saclis, 33 Kan. 621; 52 Am. Rep. 547. TUFTS v. SYLVESTER. [79 MAINE, 213.1 RIGHT or STOPPAGE IN TRANSITU is favored by the law. INSOLVENT VENDEE MAY REFUSE TO TAKE POSSESSION and thus leave unim- paired the right of stoppage in transitu. GOOD STOPPAGE IN TRANSITU is EFFECTED when an insolvent purchaser gives notice of his inability to pay to the vendor, and leaves the goods when they arrive in the possession of some person for the vendor, the latter expressly or tacitly assenting. RIGHT OF STOPPAGE IN TRANSITU may be effected by demand upon the car- rier and an insolvency messenger, when the vendee becoming insolvent has countermanded the order of purchase and refused to receive the goods, and his messenger in insolvency, before an assignee is appointed, has accepted the goods from the carrier and paid the charges thereon. MIUENOER APPOINTED FOR INSOLVENT VENDEE cannot receive goods so as to terminate tho right of stoppage in transitu. He acts in a passive ca- 304 TUFTS v. SYLVESTER. [Maine, pacity merely as custodian, until an assignee is appointed, and has no more authority ex offitio than a carrier or middleman. Therefore while the goods are in his hands the right of stoppage may be exercised. Belcher, for the plaintiff. Whitcomb, for the defendant. By Court, PETERS, C. J. The plaintiff sold a bill of goods to be shipped at Boston to the buyer at Farmington in this state. The buyer, becoming insolvent after the purchase, countermanded the order, but not in season to stop the goods. Before the goods came he had gone into insolvency, and a messenger had taken possession of his property. An express company, bringing the goods, tendered them to the buyer, who refused to receive them, but the messenger accepted the goods from the carrier, paying his charges thereon. After this, but before an assignee was appointed, the seller made a demand upon both the carrier and the messenger, attempting to re- claim his goods. The question, upon these facts, is, whether the goods were seasonably stopped in transitu to preserve the plaintiff's lien thereon. We think they were. The right of stoppage in transitu is favored by the law. It is clear that the goods did not go into the buyer's posses- sion. He refused to receive them. He had a moral and legal right to do so. Such an act is commended by jurists and judges. He in this way makes reparation to a confiding ven- dor. " He may refuse to take possession," says Mr. Benjamin, " and thus leave unimpaired the right of stoppage in transitu, unless the vendor be anticipated in getting possession by the assignees of the buyer": Benjamin on Sales, sec. 858. In Grout v. Hill, 4 Gray, 361, Shaw, C. J., says: "Where a pur- chaser of goods on credit finds that he shall not be able to pay for them, and gives notice thereof to the vendor, and leaves the goods in possession of any person, when they arrive, for the use of the vendor, and the vendor, on such notice, expressly or tacitly assents to it, it is a good stoppage in transitu, al- though the bankruptcy of the vendee intervene": See same case at page 369; 1 Parsons on Contracts, *596, and cases. The decision of the case, then, turns upon the question whether the messenger could accept the goods and terminate the lien of the vendor. We do not find any authority for it. A bankruptcy messenger acts in a passive capacity, is in- trusted with no discretionary powers, acts under mandate of court, or does certain things particularly prescribed by the March, 1887.] ROYAL v. CHANDLER. 305 law which creates the office, is mostly a keeper or defender of property, a custodian until an assignee comes, and he can neither add to or take from the bankrupt's estate. He is to take possession of the "estate" of the insolvent. These goods had not become a part of the estate. He was not at liberty to affirm or disaffirm any act of the insolvent. The law imposes on him no such responsibility. Chancellor Kent says that the transit is not ended while the goods are in the hands of a carrier or middleman. A messenger has no greater authority, ex ojficio, than a middleman, excepting as the insol- vent law expressly prescribes. In Hilliard on Bankruptcy, 101, the office of a messenger is likened to that of a sheriff under a writ; he becomes merely the recipient of property. The title of the assignee, when appointed, dates back of the appointment of a messenger. Until appointment of assignee, the bankrupt himself is a proper person to tender money for the redemption of land sold for taxes: Hampton v. Rouse, 22 Wall. 263; see Stevens v. Palmer, 12 Met. 464. The case cited by the plaintiff, Sutro v. Hoile, 2 Neb. 186, supports his contention. Defendant defaulted. RIGHT OF STOPPAGE IN TRANSITC, how exercised and when terminated. House v. Judson, 29 Am. Dec. 377, and note 384-394; Sucker v. Donovan, 19 Am. Rep. 84, note 87; Allenv. Maine etc. R. R. Co., post, p. 310. and note. KOYAL v. CHANDLER. [79 MAINE, 265.] DECLARATIONS IN DISPARAGEMENT OF TITLE, made by the grantor while owner of the land, are admissible in evidence in favor of one claiming adversely to the grantee, and cannot be impeached by later and contra- dictory statements made by the grantor, after he parted with the title. Swasey and Dresser, for the plaintiff. N. and J. A. Morrttl, for the defendant. By Court, PETERS, C. J. This, a real action, involves the location of the line between the plaintiff's and defendant's premises. A person, now deceased, who was once an owner in plaintiff's land, while an owner and upon the land, made declarations respecting the line favorable to the defendant's claim. These admissions in disparagement of his own title were properly AM. ST. RIP.. VOL. I. 20 306 ROYAL v. CHANDLER. [Maine, proved at the trial by the defendant. To detract from the force of this evidence, the plaintiff was allowed to prove later and contradictory statements made by the same person under other circumstances when he was not upon the land. The last declarations were not admitted as original, primary evidence, but to contradict the first declaration. What the former owner said for himself was admitted to impeach what he had previously said against himself. The last declarations were not admissible. It was not a legal contradiction. It was un- sworn evidence. The fallacy of the idea allowing the testimony to be received consists in looking upon the former owner as a witness in the cause. The first declarations were made by him while stand- ing in a condition the same as if a party to the present suit. His admissions against his own title were of the same quality of evidence as if spoken by the plaintiff himself. If a man's conversation in his favor be admitted against what he has said against his interest, then he would certainly be allowed to corroborate one statement by consistent statements made at other times, and no limit could be fixed in respect to such evidence. Opening the door so widely would lead to mis- chievous results. The question in the ruling does not appear to have received attention in our own state. It has been several times consid- ered in Massachusets, and is there in each instance disposed of unfavorably to the plaintiff here. The case of Baxter v. Knowles, 12 Allen, 114, meets the point exactly, where it is said: "The declarations of the defendant's testator, from whom he claimed title, were not made admissible in his favor by the fact that his declarations at other times were given in evidence by the plaintiff as admissions." Pickering v. Rey- nolds, 119 Mass. Ill, is also precisely in point. Exceptions sustained. DECLARATIONS BY GRANTOR IN DISPARAGEMENT OF TITLE while he held it are admissible against his grantee: Dow v. Jewell, 45 Am. Deo. 371, and note 381; note to Horton v. Smith, 42 Id. 631; Newlin v. Osborne, 67 Id. 269, and note 270. But declarations of the grantor, made after the conveyance, are not admissible against the grantee: Beeckman v. Montgomery, 80 Id. 229, and note 234; McDowell v. Goldsmith, 61 Id. 305, and note; contra: Thomp- son v. Thompson, 68 Id. 638, but see note 648. March, 1887 ] GILLEY v. GILLEY. 307 GILLEY v. GILLEY. [79 MAINE, 292.] AFTER DIVORCE A VINCULO DECREED WIFE for husband's "desertion and failure to support," without provision for alimony or custody of children, the husband is still liable for the necessary support of the children of the marriage during their minority. DURING HIS LIFETIME FATHER is ENTITLED to the services and earnings, and liable for the support of his minor children, independent of statute or decree; but during such period the wife is not entitled to the services of, nor is she bound to support, such children. DECREE OF DIVORCE, WITHOUT PROVISION FOR CUSTODY OF CHILDREN of the marriage, does not affect the parental relation between the parties and their children. The husband is still liable for their support during mi- nority. Baker, Baker, and Cornish, for the plaintiff. S. and D. Titcomb, for the subsequent attaching creditor, who appeared and defended, instead of the defendant. By Court, VIRGIN, J. Assumpsit by the mother against the father for their young children's necessary support furnished after a divorce a vinculo decreed to her for his " desertion and failure to support," he having been absent from the state sev- eral years prior to the decree and never having returned or furnished any support whatever during the time, and no decree for alimony or custody of the children having been made. It is a matter of common knowledge that a father is entitled by law to the services and earnings of his minor children. It is equally well known that this right is founded upon the obli- gation which the law imposes upon him to nurture, support, and educate them during infancy and early youth, and it con- tinues until their maturity, when the law determines that they are capable of providing for themselves: Benson v. Remington, 2 Mass. 113; Dawes v. Howard, 4 Id. 98; Nightingale v. With- ington, 15 Id. 274; 8 Am. Dec. 101; State v. Smith, 6 Me. 462, 464; Dennis v. Clark,2 Gush. 352, 353; 48 Am. Dec. 671; Rey- nolds v. Sweetser, 15 Gray, 80; Garland v. Dover, 19 Me. 441; Van Valkinburgh v. Watson, 13 Johns. 480; 7 Am. Dec. 395; Furman v. Van Sise, 56 N. Y. 435, 439, 445, 446; 15 Am. Rep. 441; 2 Kent's Com. 190 et seq.; Schouler on Domestic Rela- tions, 321. In Dennis v. Clark, supra, the court said: " By the common law of Massachusetts, and without reference to any statute, a father, if of sufficient ability, is as much bound to support and provide for his infant children, in sickness and in health, as a GILLEY v, GILLEY. [Maine, husband is bound by the same law, and by the common law of England, to support and provide for his wife. And if a hus- band desert his wife, or wrongfully expel her from his house, and make no provision for her support, one who furnishes her with necessary supplies may compel the husband, by an ac- tion at law, to pay for such supplies. And our law is the same, we have no doubt, in the case of a father who deserts or wrongfully discards his infant children." This upon the ground of agency: Reynolds v. Sweetser, supra; Hall v. Weir, 1 Allen, 261; Camerlin v. Palmer Co., 10 Id. 539. But a minor, who voluntarily abandons his father's house, without any fault of the latter, carries with him no credit on his father's account, even for necessaries: Weeks v. Merrow, 40 Me. 151; Angel v. McLellan, 16 Mass. 27; 8 Am. Dec. 118. Otherwise, a child, impatient of parental control, while in his minority, would be encouraged to resist the reasonable control of his father, and afford the latter little means to secure his own legal rights be- yond the exercise of physical restraint: White v. Henry, 24 Me. 533. Moreover, in actions for seduction, whereof loss of service is the technical foundation, the loss need not be proved, but will be presumed in favor of the father, who has not parted with his right to reclaim his minor daughter's service, although she is temporarily employed elsewhere: Emery v. Gowen, 4 Me. 33; 16 Am. Dec. 233. "And this rule results from the legal obli- gation imposed upon him to provide for her support and edu- cation, which gives him the right to the profits of her labor": Blanchard v. Ilsley, 120 Mass. 489; 21 Am. Rep. 535; Kennedy v. Shea, 110 Mass. 147; 14 Am. Rep. 584; Emery v. Gowen, supra; Furman v. Van Sise, 56 N. Y. 435, 444; 15 Am. Rep. 441. So also in that large class of cases wherein needed supplies, furnished by the town to minor children, between whom and their father, though they lived apart, the parental and filial relations still subsisted, are considered in law supplies indi- rectly furnished the father, the reason is, because he was bound in law to support them: Garland v. Dover, 19 Me. 441. We are aware that courts of the highest respectability, espe- cially those of New Hampshire and Vermont, hold that a parent is under no legal obligation, independent of statutory provision, to maintain his minor child, and that in the absence of any contract on the part of the father, he cannot be held, except under the pauper laws of those states, which are sub- March, 1887.] GILLEY v. GILLEY. 309 Btantially like our own: Kelley v. Davis, 49 N. H. 187; 6 Am. Rep. 499; Gordon v. Potter, 17 Vt. 348. But as before seen, the law was settled otherwise in this state before the separation, and has been frequently recognized in both states since; and we deem it the more consistent and humane doctrine. It is also settled that at least during the life of the father, the mother, in the absence of any statutory provision, or decree relating thereto, not being entitled to the services of their minor children, is not bound by law to support them: Whipple v. Dow, 2 Mass. 415; Dawes v. Howard, 4 Id. 97; 2 Kent's Com. *192; Weeks v. Merrow, 40 Me. 151; Gray v. Durland, 50 Barb. 100; Furman v. Van Sise, supra, both opinions; R. S., c. 59, eec. 24. This leads to an inquiry into the effect of the divorce a vin- culo alone, unaccompanied by any decree committing the cus- tody of the children to the mother. For when such a decree is made, then the father would have no right, either to take them into his custody, and support them, or employ any one else to do so, without the consent of the mother: Hancock v. Merrick, 10 Gush. 41; Brow v. Brightman, 136 Mass. 187; Finch v. Finch, 22 Conn. 411. Although it is held otherwise in some jurisdictions: Holt v. Holt, 42 Ark. 495, and other cases on plaintiff's brief. But a decree of custody to the mother is predicated of its primarily belonging by right to the father, and the granting of ft implies that such action on the part of the court is abso- lutely essential to imposing upon her the legal obligation of supporting their minor children. So long as the father lives, the mother, in the absence of any decree of custody in her behalf, canned, of right claim, as against him, their services, provided he is ^ suitable person to have the care of them. He may on habeas corpus obtain custody, as against their mother, on satisfying the court that he is a fit custodian: Commonwealth v. Briggs, 16 Pick. 203. It would seem to follow that the divorce alone, while it dis- solved the matrimonial relation between the parties thereto, did not affect in any wise the parental relation between them and their children. When the divorce was decreed in behalf of his wife, the defendant thereupon ceased to be her husband, but he Btill remained the father of the children which had been born to him during his conjugal relation with the plaintiff, with all the father's duties and legal obligations full upon him. 310 ALLEN v. MAINE CENTRAL R. R. Co. [Maine, The cases which hold that in case of a decree for custody the father is not holden, impliedly hold that in the absence of any such decree he is liable: Brown v. Brightman, supra. When the bond of matrimony was dissolved, these parties became as good as strangers; and the plaintiff may then maintain an action against the defendant for any cause of action which at least subsequently accrued: Carlton v. Carlton, 72 Me. 115; 39 Am. Rep. 307; Webster v. Webster, 58 Me. 139; 4 Am. Rep. 253. We are of opinion, therefore, that this action is maintain- able on the implied promise of the defendant resulting from the circumstances and the law applicable thereto. Exceptions overruled. FATHER is LIABLE FOR SUPPORT of child after divorce granted: Buck- minster v. Buckminster, 88 Am. Dec. 652, and note 659; Pretzinger v. Pretzin- ger, Sup. Ct. Ohio, Dec. 13, 1887. LIABILITY OF FATHER FOR SUPPORT OF MINOR CHILD: Note to Colebrook v. Stetoartstown, 64 Am. Dec. 279; Bennett v. Gillette, 74 Id. 779; Freeman v. Robinson, 20 Id. 399, and note. The mother is under no obligation to sup- port her minor child, and is not entitled to his services: Fairmount etc. R'y Co. v. Stotier, 93 Id. 714. ALLEN v. MAINE CENTRAL EAILEOAD COMPANY. [79 MAINE, 827.J ANY NOTICB BY CONSIGNOR TO CARRIER to stop the goods in transit is suffi- cient; no particular form of notice is required. CONSIGNOR EXERCISING RIGHT OF STOPPAGE IN TRANSITU must act in good faith toward the carrier, but if after giving notice to stop the goods, aud furnishing reasonable evidence of the validity of his claim in due time by forwarding the invoice and his affidavit of ownership, the carrier re- fuses to stop the goods, he must respond in damages. THE notice spoken of in the opinion was as follows, by tele- graph: " Philadelphia, March 24, 1884. Stop and return four bales rags consigned to William Beatty, No. Gray, Maine, marked Diamond P. with B. outside. W. F. Allen & Co." Afterwards the notice was repeated by letter, as follows: "To F't Agt. Maine Central R. R., Gray, Maine: Dear Sir, We telegraphed you to stop and return four bales rags consigned to William Beatty, No. Gray, Maine, marked Diamond P. with B. outside, we now write to confirm same, inclosed you will find a postal card, please make us an early reply, and oblige yours truly, W. F. Allen & Co." March, 1887.] ALLEN v. MAINE CENTRAL R. R. Co. 311 Clarence Hale, for the plaintiff. Drummond and Drummond, for defendants. By Court, EMERY, J. The only mooted question in this case is, whether the plaintiffs effectually exercised against the carrier their clear right of stopping the goods in transitu. The plaintiffs seasonably telegraphed and wrote the proper officer of the defendant company (the carrier) to stop and return the goods. The defendant company contend the notice was insufficient, because there was no statement of the nature or basis of the claim to have the goods stopped. While such a statement is probably usual, it does not seem necessary in this case. The carrier is presumed to know the law, and by such a notice as was given here is effectually apprised of a claim adverse to the consignee, as well as of a claim upon himself. In Benjamin on Sales, 1276, while it is said that the usual mode is a simple' notice to the carrier, stating the vendor's claim, etc., it is also stated that " all that is required is some act or declaration of the vendor countermanding the delivery." Brewer, J., in Ruder v. Donovan, 13 Kan. 251, 19 Am. Rep. 84, said: "A notice to the carrier to stop the goods is sufficient. No particular form of notice is required." In Clemintson v. Grand Trunk R'y Co., 42 U. C. Q. B. 263, while it was held that the notice was faulty in not identifying the goods, it was said that a specification of the basis of the claim was not necessary. The defendant further contends that the plaintiffs' omission to afterward prove to the carrier their right to stop the goods, when requested by the carrier to do so, has vacated their claim, and released the carrier from liability. But the car- rier is not the tribunal to determine the rights of the con- signor and consignee. Neither of these parties can be required to plead or make proof before the carrier. No- man need prove his case to his adversary. It is sufficient if he prove it to the court. The carrier cannot conclusively adjudicate upon his own obligations to either party. He is in the same position as is any man, against whom conflicting claims are made. If, as is alleged here, the circumstances are such that he cannot compel them to interplead, he must inquire for himself, and resist or yield at his peril. It is reasonable, however, that the person assuming the right to stop goods in transit should act in good faith toward the carrier. He should, if requested, furnish him, in due 312 ALLEN v. MAINE CENTRAL R. R. Co. [Maine, time with reasonable evidence of the validity of his claim, though it may not amount to proof. Should the consignor refuse such reasonable information as he may possess, such refusal might be construed as a waiver of his peculiar right, and might justify the carrier, after a reasonable time, in no longer detaining the goods from the consignee. But there was no such refusal here. The plaintiffs sent forward the invoice and their affidavit within a reasonable time. The plaintiffs have now proved their right to stop the goods, and the defendant company, having denied that right without good reason, must respond in damages. Judgment for plaintiffs for $176.41, with interest from the date of the writ. RIGHT OF STOPPAGE IN TRANSITU, HOW EXERCISED. The vendor's right of stoppage continues, not only while the goods are being carried to the point of destination, but also until they have actually or constructively passed into the possession of the vendee. During such time, the right of stoppage may be exercised in almost any manner, as no particular form or mode seems to have been required in any case. Lord Hardwicke said, in Snee v. Prescot, 1 Atk. 250, that the vendor might get the goods back again by any means, so long as he did not steal them, and he would be free from blame. All that is required to make the stoppage effectual is demand or notice on behalf of the vendor in the assertion of his rights as paramount to those of the buyer or vendee: Siffken v. Wray, 6 East, 380. It is not necessary for the vendor to take actual possession by a manual seizure, but it is sufficient if he makes a claim for them adversely to the vendee during their transportation. All that is required is some act or declaration by the vendor countermanding the de- livery of the goods. As was said in Rucker v. Donovan, 13 Kan. 255, 19 Am. Rep. 84, actual seizure of the goods before they come into the hands of the vendee is not necessary to the exercise of the right of stoppage in transitu. A demand of the carrier, or notice to him to stop the goods, or a claim and en- deavor to get the possession, is sufficient. See also Walker v. Woodbridge, Cooke's Bankruptcy Law, 402. The demand must be made of the carrier or middleman, in whose custody the goods are at the time, and under such cir- cumstances that they may prevent th'eir delivery to the vendee: Mottram v. Heyer, 5 Denio, 629. But such demand must be made of the one in posses- sion of the goods: Rucker v. Donovan, 13 Kan. 251; 19 Am. Rep. 84. And a demand for the property on the vendee before its actual delivery to him, and while it is in the custody of custom-house officers, is not sufficient to enable the vendor to exercise the right of stoppage: Mottram v. Heyer, 5 Denio, 629. A valid demand for the goods may be made by the agent of the vendor upon the captain of the vessel carrying the goods before they are unloaded, and if after such demand the captain delivers them to the assignee of the vendee, the vendor may maintain trover against the assignee: Bohtlingk v. Inglis, 3 East, 380. Nor is it necessary to a valid stoppage in transitu that the party by whom it is effected should have special authority to that effect; if he has the authority of a general agent, it is sufficient. So a mer- chant to whom the goods were sent, with directions to forward them, may effect the stoppage for the benefit of the vendor, provided the act is affirmed March, 1887.] ALLEN v. MAINE CENTRAL R R. Co. 313 by the latter: Chandler v. Fulton, 10 Tex. 2; 60 Am. Dec. 188; Newhallv. Vargas, 29 Id. 489; Durgy etc. Co. v. O'Brien, 123 Mass. 12; Bell v. Moss, 5 Whart. 189; Reynolds v. Boston etc. R. R., 43 N. H. 579. But it seems, if the ratification of the agent's act comes after the goods have reached the ven- dee or his assignee, it comes too late, and the right of stoppage is lost: Bird v. Brown, 4 Ex. 786; Davis v. McWhirter, 40 U. C. Q. B. 598. A mere claim for the goods, though no actual possession be taken, is a sufficient exer- cise of the right of stoppage: Mills v. Ball, 2 Bos. & P. 457, cited approv- ingly in Atkins v. Colby, 20 N. H. 156. Of course, if the vendor takes actual possession of the goods during the transit, this is an effectual exercise of the' right of stoppage: Stanton v. Eager, 16 Pick. 467. So if the goods, after being consigned, are lodged in the custom-house, because the duties on them are not paid, the vendor may exercise the right at any time before they are sold, and if the claim is seasonably made, and the goods are afterwards sold for duty, he is entitled to the proceeds of the sale: Northey v. Field, 2 Esp. 613. The usual mode of exercising the right of stoppage in transitu is by simple notice to the carrier, in which the vendor's right is stated, forbidding delivery to the vendee, or requiring that the goods be held subject to the vendor's orders. In Jones v. Earl, 37 Cal. 630, it is said that no express demand on the carrier for the goods is necessary in order to charge him; all that is re- quired is, that he be clearly informed that it is the desire of the vendor to retake the goods, and notice to this effect is sufficient. To the same effect, Reynolds v. Boston etc. R. R., 43 N. H. 580; Bell v. Moss, 5 Whart. 189; Sucker v. Donovan, 13 Kan. 251; 19 Am. Rep. 84; Bloomingdale etc. v. Mem- plus etc. R. R. Co., 6 Lea, 616. In such case, notice to the agent of the car- rier, who is in possession of the goods in the regular course of his agency, is notice to the carrier: Jones v. Earl, supra. The notice, however, must be given to the one in possession of the goods: Ruckcr v. Donovan, 13 Kan. 251; 19 Am. Rep. 84. So that notice to the carrier, or to any one having charge of the goods during their transit, is sufficient, and does not prevent retaking the goods afterwards on account of a claim interposed by the vendee: Newhall v. Vargas, 29 Am. Dec. 489. The notice, to be effectual, must be given to the party having immediate possession of the goods, or to the principal whose servant has the custody, at such time, and under such circumstances, that he may, by the exercise of reasonable diligence, communicate it to his servant in time to prevent delivery to the vendee or his assignee: Whitehead v. Ben- bow, 9 Mees. & W. 517. It has been held, however, that notice to the ship- owner imposes no duty on him to communicate it to the master of the ship, and that it is not effectual until communicated to the master: Ex parte Folk, 14 L. R. Ch. 446; affirmed, 7 L. R. App. C. 573. Notice to the carrier not to deliver the goods to the vendee is a sufficient exercise of the right of stop- page; and if the goods, by mistake of the carrier, are subsequently delivered to the vendee, the carrier is liable for their value: Litt v. Cowley, 7 Taunt. 169; 2 Marsh. 457. The notice must be specific enough to identify the goods, and must clearly state tho object for which it is given, namely, a desire to top the goods; if, in either event, it fails, it is insufficient: Clementson v. Grand Trunk R. R. Co., 42 U. C. Q. B. 263; Phelps, Stokes, A Co. v. Comber, L. R. 26 Ch. 755; 29 Id. 813. The vendor may effectually exercise the right of stoppage in tranntu by giving notice to the ship-owner, when the latter has retained the bills of lading for unpaid freight: Ex parte Watson, L. R. 5 Ch. 35; 21 M oak's Eng. Rep. 764. And the vendor's notice to stop the goods makes it the duty of 314 SEELE r. INHABITANTS OF DEERING. [Maine, the master of the vessel to refuse delivery to vendee to whom the bill of lading has been indorsed, and such notice is sufficient without representing that the bill of lading has not been assigned to the vendee. Under such notice, the vendor may demand redelivery to himself, and the carrier can- not retain the goods for delivery to the true owner after conflicting claims have been settled: The Tiyreas, 32 L. J. Adm. 97. The right of stoppage may be exercised by notice to the carrier after the goods have been stored in the railroad warehouse, and are there awaiting the payment of charges and delivery: Symns v. SchoUen, 35 Kan. 310. So if the goods are in the cus- toms warehouse, and the vendor gives notice to the carrier to stop them, after which the agent of the carrier gives an order for delivery to another upon payment of charges, the notice to the carrier ia sufficient to stop them, though it might be advisable to also give notice to the customs officer. And if the goods are taken by the person holding the order, the company is liable for the delivery: Ascher v. Grand Trunk R. R. Co., 36 U. C. Q. B. 609. Where the vendee becomes insolvent during the transit of the goods, or after it has terminated, but before the goods have vested in his assignee, and the vendee has either rescinded the order of purchase or refused to accept the goods, the vendor may exercise the right of stoppage in transitu by mak- ing demand, or giving notice to that effect to the middleman, carrier, or cus- todian of the goods: Note to Hause v. Judson, 29 Am. Dec. 392; Tufts v. Sylvester, ante, p. 303; Clark v. Lynch, 4 Daly, 83; Clark v. Bartlett, 50 Wis. 543, 547; see also note to Sangslaffv. Stix, 60 Am. Rep. 51-57. SEELE v. INHABITANTS OF DEERING. [79 MAINE, 343.J TOWN is NOT LIABLE FOR NUISANCE when the acts complained of are not within the scope of its corporate powers, nor performed by its officers in the execution of any corporate duty imposed upon them. TOWN INDEPENDENT OF STATUTE HAS No CORPORATE POWER to dig ditchea across another's land. Such act is ultra vires, and no liability is created on the part of the town when such acts are authorized and directed by a majority of the corporate officers. Perry and Meaher, for the plaintiff. N. and H. B. Cleaves, and Drummond and Drummond, for the defendants. By Court, VIRGIN, J. Assuming, what the demurrer ad- mits, the allegations in the declaration to be true, it is obvious that a most unmitigated nuisance has been created on and about the premises of the plaintiff to his great injury; and were the defendant an incorporated city, its alleged acts would constitute prima facie such a cause of action as might render it liable in the absence of any justification : Cumberland etc. Co. v. Portland, 62 Me. 505. But we have looked in vain April, 1887.] SEELE v. INHABITANTS OF DEERINO. 315 through both counts for any allegations which, in our view, render the defendant town liable for the alleged acts which have resulted so injuriously to the plaintiff's property. The authority and liability of our quasi public corporations known as towns, as distinguished from municipal corporations incorporated under special charters, are generally only such as are defined and prescribed by general statutory provisions. Some things they may lawfully do, and others they have no authority for doing. To create a liability on the part of a town not connected with its private advantage, the act com- plained of must be within the scope of its corporate powers as defined by the statute. If the particular act relied on as the cause of action be wholly outside of the general powers con- ferred on towns, they can in no event be liable therefor, whether the performance of the act was expressly directed by a major- ity vote, or was subsequently ratified: Morrison v. City of Law- rence, 98 Mass. 219. So a town is not liable for the unauthorized and illegal acts of its officers even when acting within the scope of their du- ties: Brown v. Vinalhaven, 65 Me. 402; 20 Am. Rep. 709; Small v. Danville, 51 Me. 359; but it may become so when the acts complained of were illegal but done under its direct authority previously conferred or subsequently ratified: Woodcock v. Calais, 66 Id. 234, and cases there cited. The difficulty with the counts is, that the allegations therein do not bring the acts complained of within the scope of the corporate powers of the town, or aver that they were performed by its officers in the execution of any corporate duty imposed by law upon the town : Anthony v. Adams, 1 Met. 284. There is no intimation that the acts were done in connection with the making or repairing of any highway or townway which the law imposed upon the town, or in relation to any drain or sewer laid out or attempted to be laid out by the town authori- ties under the Revised Statutes, chapter 16, for which it might Under certain circumstances become liable: Estea v. China, 56 Me. 407; Franklin Wharf Co. v. Portland, 67 Id. 46; 24 Am. Rep. 1; or in emptying a common sewer upon the property of the plaintiff outside of the public works, as in Prop'rs L. & C. v. Lowell, 7 Gray, 223. But the principal allegations are, that the defendants " wrongfully opened and dug a ditch across the main road .... in Deering, and into an artificial ditch in the rear of ft tripe and bone-boiling establishment from which a cesspool of stagnant and filthy water was then and there 316 BRIGGS v. LEWISTON ETC. R. R. Co. [Maine, collected, and then and there continued said ditch across the land of Samuel Jordan two hundred feet in the direction of the plaintiff's land. ai.d out of the natural course of said water, and onto the plaintiff's land, and along through the same into his mill pond. ' It is quite evident that a town, independent of any statutory authority, has no corporate power to dig ditches across anoth- er's land. Such an act is ultra vires; and any express majority vote, based on a proper article in a warrant calling a meeting of the defendants directing such acts, would create no liability on the part of the town: Gushing v. Bedford, 125 Mass. 526; Lemon v. Newton, 134 Id. 476. Whether or not the declaration can be amended so as to make the town liable, we cannot in the absence of a knowledge of the facts now determine. Exceptions overruled. WALTON, J., did not sit. LIABILITY OF MUNICIPAL CORPORATION for nnft.infa>.iTn'Tig or abating a nui- sance which is ultra vires: Cavanagh v. Boston, 62 Am. Rep. 716. BRIGGS v. LEWISTON AND AUBURN HORSE R E. Co. 179 MAINS, 368.] WHEN LAND HAS BEEN LAWFULLY TAKEN FOR STREET, legislative and municipal authority may authorize the construction and operation of a street railway upon it, no matter what the motor, without providing for additional compensation to the land-owner. Savage and OaJces, for the plaintiff. Dana and Estey, for the defendant. By Court, EMERY, J. A strip of the plaintiff's land in Au- burn had been lawfully taken by public authority for a public highway, and just compensation had been made to the owner therefor. The defendant company had subsequently con- structed a street railroad (commonly called a " horse rail- road ") in this highway and over the strip of land thus taken from the plaintiff's land. Early in 1885, the company low- ered the grade of their rails on this strip, whereupon the plaintiff brought this action, alleging said acts of the defend- ant company to be a trespass on her land. All these acts of the defendant were within the limits of the April, 1887.] BRIQGS v. LEWISTON ETC. R. R. Co. 317 highway, and were done under express license from the city council of Auburn, and from the legislature. They would not therefore constitute any trespass on the plaintiff's land, if such license conferred lawful authority. The plaintiff contends, however, that the license invoked in this case has no validity and confers no authority, because it undertakes to make a new and different use of her land, without providing a just com- pensation therefor. We do not think the construction and operation of a street railroad in a street is a new and different use of the land from its use as a highway. The modes of using a highway strictly as a highway are almost innumerable, and they vary and widen with the progress of the community. When a highway is first established in some unfrequented locality, it may exist for a time as a rude road, with a narrow track, and only occa- sionally used. With the growth of population and business, and the transformation of the lonely neighborhood into a thriving, increasing city, the highway may also go through the transformations of being turnpiked, planked, macadam- ized, and paved for its entire width. From bearing an occa- sional rude cart, it may come to sustain an endless succession of wagons, drays, coaches, omnibuses, and other vehicles of travel and traffic. There is a continual march of improve- ment in streets and in vehicles. It cannot be that the land- owner must be compensated anew at each new improvement in street, or vehicle, or with every increase of traffic. All the land originally taken was taken for a highway, and for all time, if needed, and the compensation was estimated on that basis. The taking and the payment were once for all. The public, at the first taking, acquired an untrammeled right of way over every part of the land taken, with full right to do all things upon the land to facilitate its use as a highway, and make it sufficient at any time for the increasing need of the public for a highway. There is in such cases no stipulation limiting the public to any particular kind of road or vehicle. The laying down rails in the street, and the running street- cars over them for the accommodation of persons desiring to travel on the street, is only a later mode of using the land as a way, using it for the very purpose for which it was originally taken. It may be a change in the mode, but it is not a change in the use. The land is still used for a highway. The weight of authority is so manifestly in favor of this proposition it is unnecessary to cite particular decisions. 318 BRIGOS v. LEWISTON ETC. R. R. Co. [Maine, Our attention is called to the fact that this defendant com- pany is authorized to use steam as a motor on this same rail- road, and we are cited to decisions of courts holding that the ordinary steam railroad companies must make additional com- pensation to land-owners before taking a street for their rail- roads. The argument is, that however it may be as to horse railroads, steam railroads must make compensation. We do not think the motor is the criterion. It is rather the use of the street. If the railroad company exclusively occupy the land, shut off the street from it, deprive it of its char- acter of bearing the easement of a street, use it, not for street traffic, but for what is known as railway traffic, the company may perhaps be said to make a new and different use of the land. But we have no occasion now to express any opinion on that question. This defendant company is using the land as a street. Its railroad is a street railroad. Its cars are used by those who wish to pass from place to place on the street. A change in the motor is not a change in the use. If public authority can lawfully authorize the construction and operation of a street railway in a public street, without providing for additional compensation to the land-owner (as we think it can), it can also lawfully authorize a change of grade for that purpose, without committing a trespass upon the land-owner. The officers of municipalities, charged with the duty of mak- ing the streets safe and convenient for the use of an increasing traffic, have large authority, and wide discretion in all matters of construction and improvement, including grades. It has been held that the lowering the grade of a street by a person acting under municipal authority and in good faith, without wantonness, is not a trespass against the land-owner: Hovey v. Mayo, 43 Me. 332. In this case the lowering of the grade was done under the authority of the city council and of the commissioner of streets. There is no suggestion of want of good faith. We think the plaintiff is confined to the remedy provided by statute, section 16 of city charter of Auburn, and section 68, of chapter 18, of the Revised Statutes. These statute pro- visions will afford a remedy, if she be entitled to any compen- sation. She cannot maintain this action of trespass. Judgment for defendant. April, 1887.] CASCO NATIONAL BANK v. SHAW. 319 LAYING OF HORSE RAILROAD TRACK on street is not new servitude, BO as to entitle owner along the street to additional compensation: Note to Imlay \. Union Branch R. R. Co., 68 Am. Dec. 398; Attorney-General v. Metropolitan R. R. Co., 28 Am. Rep. 264, and note 267; Hinchman v. Paterson Horse R. R. Co., 86 Am. Dec. 252, and note 258; Hiss v. Baltimore etc. R'y Co., 36 Am. Eep. 371; Eichels v. Evansville etc. R'y Co., 41 Id. 561; CarU v. Stillwater etc. Ry Co., 41 Id. 290 CASCO NATIONAL BANK v. SHAW. {79 MAINE, 876.] NOTICE or DISHONOR OF NOTE is sufficient if addressed to the indoreers at their former place of business, where their affairs were being settled by a trustee to whom they had assigned for the benefit of their creditors. NOTICE or DISHONOR OF NOTE is PROPERLY MAILED if dropped into a street letter-box put up by the post-office department. It is as truly mailed as if deposited in a letter-box within the post-office building. IN ACTION BY HOLDER AGAINST INDORSER OF NOTE, the latter is not en- titled to the benefit of payments made by a third party under an agree- ment with the holder that the note should be assigned to him. The money so paid is not a payment on the note. REQUEST BY DEFENDANT TO CONTINUE ACTION until the termination of in- solvency proceedings against him ia discretionary with the court, and cannot be claimed as matter of right. It will only be granted when justice will thereby be promoted. William L. Putman, for the plaintiff. G. W. Morse, and N. and H. B. Cleaves, for the defendants. By Court, WALTON, J. We think the defendants had due notice of the dishonor of the notes declared on. Notices were addressed to them at their former place of business, where their affairs were being settled up by a trustee, to whom they had made an assignment for the benefit of their creditors, and we have no doubt that the notices were received by the trus- tee. Notices so sent and received are sufficient: Bank of America v. Shaw, 142 Mass. 290; 2 N. E. Rep. 572. In the case cited, the notice was to the same firm, and under sub- stantially the same circumstances as in the cases now before us. and the notice was held good, "because it was sent to what had been the place of business of the firm, where its affairs were actually in process of settlement under the trust." It is objected that the notices were not properly mailed, be- cause they were dropped into a street letter-box. We think this is not a valid objection. Street letter-boxes are author- ized by an act of Congress (U. 8. R. S., sec. 3868), and are as completely and as exclusively under the care and control of 320 CASCO NATIONAL BANK r. SHAW. [Maine, the post-office department as boxes provided for the reception of letters within the post-office buildings themselves; and we think a letter deposited in a street letter-box which has been put up by the post-office department is as truly mailed, within the meaning of the law, as if it were deposited in a letter-box within the post-office building itself. It has been held that a delivery to a letter-carrier is sufficient: Pearce v. Langfit, 101 Pa. St. 507; 47 Am. Rep. 737. Payments are claimed. Since the commencement of these actions, the bank has received $44,398.17 from F. A. Wyman which the defendants claim should be credited to them. The credit cannot be allowed. The money was not delivered or received as payments on the notes in suit. It was received on a contract by which the bank agreed to assign to Wyman the notes in suit, and the actions thereon, "with all benefit of attachments, if any, made in said suits," and this con- tract has been assigned by Wyman to a third party. It is clear, therefore, that the defendants are not entitled to the benefit of these payments. So far as appears, they have neither a legal nor an equitable right to the benefit of them. Payments to the amount of $11,720.52 have been made by C. W. Clement and C. H. Ward on such of the notes in suit as are signed by them, which will of course be allowed, and the defendants will have the benefit of them. The court is asked to continue these actions to await the result of insolvency proceedings which they aver are pending against them in this state. We are not satisfied that this request ought to be granted. The petitions have been pend- ing since November, 1883, and yet no adjudication has been had upon them; and we doubt if there is any intention to prosecute them further; for the petitioning creditors appear to have been settled with and their claims assigned to the de- fendants' trustee, Wyman. Continuances for such a cause are discretionary with the court; they cannot be claimed as a matter of right; and they will only be granted when the court is satisfied that justice will be thereby promoted: Schwartz v. Drinkwater, 70 Me. 409. We are not satisfied that justice would be thereby promoted in these actions. The request is therefore denied. Four actions between the same parties have been submitted to the law court upon one report of evidence; and the parties have agreed that the court shall render such judgment in each lase as the legal rights of the parties may require. It is the June, 1887.] WORMELL t>. MAINE CENTRAL R. R. Co. 321 opinion of the court that the plaintiff is entitled to judgment in each of the four actions, and such judgments will accord- ingly be entered. NOTICE OF DISHONOR LEFT AT INDORSEE'S former place of business is sufficient when: Lewisfon Falls Bank v. Leonard, 69 Am. Dec. 49. NOTICB OF DISHONOR BY MAIL, SUFFICIENCY OF: Wahoorth v. Leaver, 73. Am. Dec. 332, and note 334; Walters v. Brown, 74 Id. 556. MOTION FOR CONTINUANCE is MATTER OF DISCRETION with the courtr Shattuck v. Myers, 74 Am. Dec. 236, and note 245; Hyde v. State, 67 Id. 640. WOEMBLL v. MAINE CENTRAL RAILROAD COMPANY. [79 MAINE, 897.J To ENTITLE SERVANT TO RECOVER FOR INJURY, he must prove negligence or omission of duty on the part of the master, occasioning the injury. If it was caused by his own neglect and want of ordinary care, or was the result of accident, he cannot recover. In such cases, negligence is never presumed against the master. RELATION OF MASTER AND SERVANT, without neglect of duty, does not im- pose on the master a guaranty of the servant's safety, but that a ser- vant of sufficient age and intelligence to understand the nature of the risks to which he is exposed undertakes, for compensation, the natural, ordinary, and apparent risks and perils incident to the employment. RELATION OF MASTER AND SERVANT requires each to exercise ordinary and reasonable care; the master to use such care in providing and main- taining suitable means and instrumentalities with which to conduct hia business that the servant exercising due care may be enabled to perform bis duty without exposure to dangers not falling within the obvious scope of his employment. MASTER is NOT BOUND TO FURNISH SAFEST MACHINERY, instrumentalities, and appliances in carrying on his business; nor need he provide the best methods for their operation in order to insure responsibility from their use. But the servant, knowing the circumstances, must judge whether he will enter his service, or, having entered, will remain. MASTER MUST NOTIFY SERVANT OF SPECIAL RISKS in the employment of which the latter is not cognizant, or which are not patent; and on fail- ure of such notice, the servant exercising due care and receiving injury is entitled to recover, when the master knew, or ought to have known, of such risks. SERVANT MUST PROVE BY EVIDENCE having legal weight that he was exer- cising due care at the time the injury was received, to entitle him to recover. WHERE SERVANT RECEIVES INJURY, QUESTION OF DUE CARE on his part is ordinarily for the jury; but sometimes it becomes one of law, whether, from the facts and circumstances, the jury can properly find in favor of such care. It SERVANT, AT TIME or RECEIVING INJURY, was not exercising due care, and was performing dangerous duties outside of his regular employment, AM. ST. REP.. You I. 21 322 WORMELL v. MAINE CENTRAL R. R. Co. [Maine, he will be held to have assumed the risk incident thereto, and cannot recover, especially when he knew as well as the master the dangerous nature of the service in which he engaged. Walton and Walton, and F. A. Waldron t for the plaintiff. Baker, Baker, and Cornish, for the defendant. By Court, FOSTER, J. The plaintiff wa9 at work as a loco- motive machinist in the car-shops of the defendant corpora- tion at Waterville. On the day the injury was received he was directed by the foreman of the car-shops to go out with an engineer and move an engine from the paint-shop near by to the repair-shop where the plaintiff worked. The engine with 'which the moving was to be done was then standing on the turn-table in the machine-shop. In order to move the engine from the paint-shop to the repair-shop, it became necessary first to remove certain cars which were on the track in the yard. The plaintiff went out, and while waiting for the switches to be turned, Philbrick, the master mechanic of the road, came out and asked him if he knew how to shackle the passenger-car that stood upon the paint-shop tracks, and the plaintiff replied that he did not know how to shackle any cars. Thereupon the master mechanic took him to the car and explained the peculiar danger that might arise from the ghackling of a passenger-car, no special instructions being given in relation to shackling flat-cars, but told him he must not get in line of the drawbars, and finally told him that he guessed he could get along by being careful. The flat-cars etood next to the engine and had to be coupled first. In at- tempting to couple the tender to the first flat-car, he made several efforts, but failed, as he claims, because the shackles were too short. Finally, when the engine and tender backed the third time, standing as he had stood before between the tender and the flat-car, with the tender on his right and the flat-car on his left, while adjusting the shackle with his right "hand, he allowed the wrist of his left hand to rest over the edge of the deadwood of the flat-car directly over its drawbar, and directly in front of the buffer upon the tender, which is a projecting arm out of which the shackle extends, and failing to connect the shackle with the drawbar of the car, the buffer came back against and crushed his left hand, necessitating its amputation. The plaintiff bases a recovery against the defendant cor- poration upon two grounds: that the implements and means June, 1887.] WOBMELL v. MAINE CENTRAL R. R. Co. 323 furnished were not proper and suitable for the work which the plaintiff was directed to do, and that Philbrick, representing the corporation as a vice-principal, placed him in a position of peculiar peril without notifying him of the danger. The latter position is the one most strenuously urged and relied on by the plaintiff, who recovered a verdict against the defendant, and the case is now before this court on motion to set aside the verdict, and also on exceptions. With the view which the court has taken of the case, it does not become necessary to determine in what capacity Philbrick was acting, whether as vice-principal or as a fellow-servant with the plaintiff, inasmuch as it is the opinion of the court that the verdict cannot be upheld upon other grounds. The action set forth is founded upon the charge of negli- gence. It is the gist of the action. To entitle the plaintiff to recover, he must prove such negligence, the omission of some duty, or the commission of such negligent acts on the part of the defendant as occasioned the injury to the plaintiff. If the injury was occasioned through his own neglect and want of ordinary care, or was the result of accident solely, the defendant being without fault, the action is not maintainable. " The negligence is the gist of the action, but the absence of negligence contributing to the injury on the part of the plain- tiff is equally important": Brown v. E, & N. A. Ry Co., 58 Me. 387; Osborne v. Knox and Lincoln R. R., 68 Id. 51; 28 Am. Rep. 16. There is no presumption of negligence on the part of the defendant from the fact alone that an accident has happened, or that the plaintiff has received an injury while in the em- ployment of the defendant. In the long line of decisions, both in this country and in England, from Priestley v. Fowler, 3 Mees. & W. 1, to the present time, it has been held that the mere fact of the relationship of master to servant, without a neglect of duty, does not impose upon the master a guaranty of the servant's safety, but that the servant of sufficient age and intel- ligence to understand the nature of the risks to which he is exposed, engaging for compensation in the employment of the master, takes upon himself the natural, ordinary, and apparent risks a.nd perils incident to such employment: Coolbroth v. Maine Central R. R. Co., 77 Me. 167; Nason v. West, 78 Id. 867. The relationship of master and servant may, and most fre- quently does, exist by simple mutual agreement that the eer- 324 WORMELL v. MAINE CENTRAL R. R. Co. [Maine, vant is to labor in the service of the master. In such case the law holds that the terms of the contract are not fully ex- pressed, and that there exists by implication reciprocal rights and obligations on the part of each which it will protect and enforce equally as if expressed by the parties. Among other things, it implies that each is to exercise ordinary and reasonable care. It implies that the master is to use ordinary care in providing and maintaining suitable means and instru- mentalities with which to conduct the business in which the servant is engaged, so that the servant, being himself in the exercise of due care, may be enabled to perform his duty with- out exposure to dangers not falling within the obvious scope of his employment. The implied duty of the master in this respect is measured by the standard of ordinary care: Hull v. Hall, 78 Me. 117. The law holds him to no higher obligation than this. Nor is the employer bound to furnish the safest machinery, instrumentalities, or appliances with which to carry on his business, nor to provide the best methods for their operation, in order to save himself from responsibility resulting from their use. If they are of an ordinary character and such as can with reasonable care be used without danger, except such as may be reasonably incident to the business, it is all that the law requires: Pittsburgh etc. R. R. Co. v. Sentmeyer, 92 Pa. St. 276; 37 Am. Rep. 684. Thus it has been held that where an injury happens to a servant while using an instrument, an engine, or a machine, in the course of his employment, the nature of which he is as much aware as his master, and in the use of which he re- ceives an injury, he cannot, at all events if the evidence is consistent with his own negligence in the use of it as the cause of the injury, recover against his master, there being no evi- dence that the injury arose through the personal negligence of the master; and that it was no evidence of such personal neg- ligence of the master that he had in use in his business an engine or machine less safe than some other in general use: Dynen v. Leach, 26 L. J., N. S., Ex. 221. And in accordance with the same principle, it was held in Indianapolis etc. R'y v. Flanigan, 77 111. 365, that a railroad company was not liable for an injury received by an employee, while coupling cars having double buffers, simply because a higher degree of care is required in using them than in those differently constructed. June, 1887.] WOBMELL v. MAINE CENTRAL R. R. Co. 325 So in Fort Wayne etc. R. R. v. Gildersleeve, 33 Mich. 133, it was decided that a railroad company which used in one of its trains an old mail-car, which was lower than others, was not liable to its servant, who knowingly incurred the risk, for an injury resulting from the coupling of such old car with an- other, though the danger was greater than with cars of equal height. Every employer has the right to judge for himself in what manner he will carry on his business, as between himself and those whom he employs; and the servant, having knowledge of the circumstances, must judge for himself whether he will enter his service, or having entered, whether he will remain: Hay den v. Smithville, 29 Conn. 548; Buzzell v. Laconia Mfg. - Co., 48 Me. 121; 77 Am. Dec. 212; Shanny v. Androscoggin Mills, 66 Me. 427; Coombs v. New Bedford Cordage Co., 102 Mass. 585; 3 Am. Rep. 506; Ladd v. New Bedford R. R. Co., 119 Mass. 413; 20 Am. Rep. 331. Moreover, the law implies that where there are special risks in an employment, of which the servant is not cognizant, or which are not patent in the work, it is the duty of the master to notify him of such risks; and on failure of such notice, if the servant, being in the exercise of due care himself, receives injury by exposure to such risks, he is entitled to recover from the master whenever the master knew, or ought to have known, of such risks. It is unquestionably the duty of the , master to communicate a danger of which he has knowledge, and the servant has not. But there are corresponding duties on the part of the servant; and it is held that the master is not liable to a servant, who is capable of contracting for himself, and knows the danger attending the business in the manner in which it is conducted, for an injury resulting therefrom: Lovejoy v. Boston and Lowell R. R. Co., 125 Mass. 82; 28 Am. Rep. 206; Ladd v. New Bedford R. R. Co., supra; Priestly v. Fowler, supra. It is his duty to use ordinary care to avoid injuries to himself. He is under as great obligation to provide for his own safety from such dangers as are known to him, or discoverable by the exercise of ordinary care on his part, as the master is to provide it for him. He may, by the want of ordinary care, so contribute to an injury sustained by himself as to destroy any right of action that might, under other circumstances, be available to him. These rules are elementary and fundamental, and are everywhere recognized. They grow out of the necessities of 326 WORMELL v. MAINE CENTRAL R. R. Co. [Maine, the relation of master and servant, and are founded and sus- tained by public policy. Though dressed in language differ- ing somewhat in style of expression, it will be found that the decisions generally are in accord with the principles herein expressed. One writer has thus summed up the doctrine in the following language: "As we have seen it to be the duty of the master to point out such dangers as are not patent, so it is the duty of the employee to go about his work with his eyes open. He cannot wait to be 'told, but must act affirmatively. He must take ordinary care to learn the dangers which are likely to beset him in the service. He must not go blindly to his work when there is danger. He must inform himself. This is the law everywhere": Beach on Contributory Negli- gence, sec. 138; Russel v. Tillotson, 140 Mass. 201. In speaking of the respective duties and obligations between master and servant, in reference to dangers which are con- cealed and those which are obvious, the court, in Cummings v. Collins, 61 Mo. 523, say: "The defendants are not liable for any injury resulting from causes open to the observation of the plaintiff, and which it required no special skill or training to foresee were likely to occasion him harm, although he was at the time engaged in the performance of a service which he had not contracted to render." Upon a careful examination of the evidence in the case under consideration, we are satisfied that the verdict cannot stand. There is not sufficient evidence upon which a jury could properly found a verdict that the plaintiff himself was in the exercise of due care at the time he received his injury. This is an affirmative proposition which, in this state, and many of the others, it is incumbent on the plaintiff to make out by proof before he could be entitled to recover: Dickey v. Maine Tel Co., 43 Me. 492; Lesan v. M. C. E. Co., 77 Id. 87; State v. M. C. R. Co., 77 Id. 541; Crafts v. Boston, 109 Mass. 521; Taylor v. Carew Mfg. Co., 140 Id. 151. Nor will this proposi- tion be sustained, where the evidence in reference to it is too slight to be considered and acted on by a jury. It must be evidence having some legal weight. Such is the general doc- trine of the decisions. A mere scintilla of evidence is not sufficient: Connor v. Giles, 76 Me. 134; Riley v. Connecticut River R. R., 135 Mass. 292; Corcoran v. Boston and Albany R. R., 133 Id. 509; Nason v. West, 78 Me. 256, and cases there cited; Cornman v. Eastern Counties R'y Co., 4 Hurl. & N. 784. It is not denied, as contended for by the learned counsel June, 1887.] WORMELL r. MAINE CENTRAL R. R. Co. 327 for the plaintiff, that the question of due care is ordinarily one of fact for the jury. But the question oftentimes becomes one of law whether there are such facts or circumstances upon which the jury can properly base their determination in favor of such care. If not, it is within the province of the- court, in the due administration of justice according to well- settled legal principles, to revise their findings. And in this case the evidence, uncontradicted from the- plaintiff himself, as to the manner of the accident, is con- clusive against the verdict upon this point. Not only do the facts as detailed by him, and about which there appears to be no controversy, fail to show the exercise of due care, but rather that degree of carelessness and neglect on his part which must be held to have very largely, if not wholly, contributed to the injury complained of. He was a man forty-five years; of age, and had been for many years familiar with engines of all constructions; had been a locomotive machinist for twelve years, repairing them constantly, and six years in the employ of the defendant corporation. For five years prior to the acci- dent, engines with buffers had been in common use upon the road, and he had worked on every pattern of engine that came into the shops where he was employed. He testifies that the engine with which he was injured came that morn- ing from the repair-shop where he was working, and that it might have been there four or five weeks, and he might have worked on it. He had received a general warning from Phil- brick to be careful, and was specially warned of the danger in reference to shackling passenger-cars. It also appears; from the testimony that he stood there watching the clearing of the tracks from fifteen to thirty minutes. He had full leisure to examine and inform himself of all the common dangers incident to shackling. It appears that he attempted three times to do the shackling, and the third time he re- ceived his injury. The first time he stood with the engine backing down upon his right, himself facing the engine and shackling apparatus on its rear, of which the buffer was the- most prominent part. The shackle itself which he took hold of projected from the buffer, and he could not see one without seeing the other. Everything was in plain sight. It was in broad daylight. At the first attempt he failed to connect the shackle with the drawbar. Consequently the tender brought up against the deadwood of the car on his left. As the shackle did not connect, the contact between the tender and 328 WORMELI, v. MAINE CENTRAL R. R. Co. [Maine, the flat-car could only have been caused by the buffer striking against the deadwood of the car precisely in the spot where he afterwards placed his left hand and received his injury. He then tried a new shackle, repeating the same process. The second time the shackle failed to connect, and the engine and car came together again in precisely the same manner as at first, the buffer again striking the car at the very point where afterwards he placed his hand. After these two at- tempts, immediately under his eye, he tried a third shackle, and the engine a third time backed down towards him, again giving him full opportunity for observation, he facing the buffer as before, and necessarily looking right into the shack- ling apparatus, of which the buffer was a part, and this time hung his left wrist over the front edge of the center of the deadwood, directly in front of the approaching buffer, in pre- cisely the same place where the buffer had just struck the deadwood twice before. It was, as the evidence shows, the only place upon the car where he could not have placed his hand with perfect safety. Placing it where he did, the injury was inevitable. It required no special skill or training to know that such an act would necessarily result in injury. This was not an extraordinary or concealed danger which required to be specially pointed out to a person of mature years and ordi- nary intelligence. He had been employed, as he himself testi- fies, for twelve years solely in work about and upon all manner of engines and cars, including engines with buffers, precisely as this one was equipped. No man needs a printed placard to announce a yawning abyss when he stands before it in broad daylight: Yeaton v. Boston and Lowell R. R., 135 Mass. 418; Coolbroth v. Maine Central R. R. Co., 77 Me. 165; Phila- delphia etc. R. R. Co. v. Keenan, 103 Pa. St. 124; Osborne v. Knox and Lincoln R. R., 68 Me. 51; 28 Am. Rep. 16. And it was held in Wheeler v. Wason Mfg. Co., 135 Mass. 298, that where the servant is as well acquainted as the mas- ter with the dangerous nature of the machinery or instrument used, or of the service in which he is engaged, he cannot re- cover: Beach on Contributory Negligence, sec. 140. Very similar were the facts in the case of Hathaway v. Mich- igan Cent. R. R., 51 Mich. 253, 47 Am. Rep. 569, to these in the case before us. There, the plaintiff, an inexperienced brakeman, was called upon by the conductor in the night-time to couple two cars of the Erie road, which were made specially dangerous by having double deadwoods, which the plaintiff June, 1887.] WORMELL v. MAINE CENTRAL R. R. Co. 329 had never seen before. In that case, as in the present, one of the real grounds set up by the plaintiff was, that he had not been sufficiently instructed in what was required of him by the company to enable him to discover and appreciate the danger, and that some notice thereof should have been given him by the company other than the general one which he re- ceived. The court say: "The plaintiff had the full opportu- nity of examining the one by which he stood some moments before the cars came together, its size, shape, and the loca- tion of the drawbar were before him. He had only to look at it to be informed of any perils surrounding it. The moving car, at a distance of twenty feet, with its deadwood and draw- bar in plain view, slowly approached the one where the plain- tiff was standing. It does not appear that there was any hurry about the business. How could the plaintiff have been better warned? He could see the deadwoods and drawbar thereon as well as if he had made the coupling of them a thousand times before. He could not fail to see if he looked at all": See also Taylor v. Carew Mfg. Co., 140 Mass. 151. If the plaintiff, as is contended, was at the time of this un- fortunate occurrence in the performance of duties outside of bis regular employment, he will nevertheless be held to have assumed the risks incident to those duties. This principle is settled by numerous decisions: Woodlcy v. Metropolitan Dis- trict Ry Co., 2 Ex. 389; Railroad v. Fort, 17 Wall. 553; Rum- mell v. Dilworth, 111 Pa. St. 343; Buzzell v. Laconia Mfg. Co., 48 Me. 121; 77 Am. Dec. 212; Hayden v. Smithville, 29 Conn. 548; Wright v. New York Central R. R., 25 N. Y. 570; Leary v. Boston and Albany R. R., 139 Mass. 587; 52 Am. Rep. 733. In the last case cited, where the question is fully discussed, the court say: "Where one has assumed an employment, if an additional or more dangerous duty is added to his original labor, he may accept or refuse it. If he has an existing con- tract, for the original service, he may refuse the additional and more dangerous service; and if for that reason he is discharged, he may avail himself of his remedy on his contract. If he has no such contract, and knowingly, although unwillingly, accepts the additional and more dangerous employment, he accepts its incidental risks; and while he may require the employer to perform his duty, he cannot recover for an injury which occurs only from his own inexperience." From the disposition of the case already made, it becomes unnecessary to consider the defendant's exceptions. The law 330 HAZELTINE v. BELFAST ETC. R. R. Co. [Maine, pertaining to the case, in order to cover it fully, at the time of the trial was necessarily somewhat complicated; and it is very questionable whether the numerous abstract propositions ap- pearing in the charge, and following each other in quick succession, could be readily comprehended by a jury unac- customed to grapple with abstruse and intricate legal proposi- tions. While the charge may have been correct in the abstract, we are of the opinion that several of the defendant's requested instructions were proper to a full understanding of the principles involved, and their application to the questions at issue, and should have been given. As the case is disposed of, however, on other grounds, noth- ing further need be said in relation to the exceptions. Motion sustained. New trial granted. SERVANT GUILTY OF CONTRIBUTORY NEGLIGENCE cannot recover damages for an injury: Hubgh v. New Orleans R. R. Co., 54 Am. Dec. 565, and note 573; BwsxU v. Laconia Mfg. Co., 77 Id. 212. As BETWEEN MASTER AND SERVANT, the latter assumes such risks as are incident to the service, and he is supposed to have contracted on those terms: Noyes v. Smith, 65 Am. Dec. 222, and note; Illinois Central R. R. Co. v. Cox, 71 Id. 298; Snow v. Housatonic R. R. Co., 85 Id. 720. DUTY OF MASTER TO FURNISH SAFE MACHINERY, materials, etc. : Snow v. Housatonic R. R. Co., 85 Am. Dec. 720, and note 730; Cowles v. Richmond etc. R. R. Co., 37 Am. Rep. 620; Kdley v. Silver Spring Co., 34 Id. 615; Gibson v. Pacific S. R. Co., 2 Id. 497. DUTY OF MASTER TO NOTIFY SERVANT of dangers of his employment: Baxter v. Roberts, 13 Am. Rep. 160, and note 164; Parlckurst v. Johnson, 45 Id. 28; Fones v. PhilUps, 43 Id. 264; Williams v. Churchill, 50 Id. 304. LIABILITY OF MASTER TO SERVANT for work performed by the latter out- side of his regular employment: Leary v. Boston etc. R. R., 52 Arp. Rep. 733, and note 737. HAZELTINB v. BELFAST AND MOOSEHEAD RAIL- ROAD COMPANY. [79 MAINE, 411.] BY-LAW OF CORPORATION MUST BE REGARDED AS CONTRACT between the corporation and its stockholders, when it states the conditions 011 which dividends are to be paid, as between preferred and unpreferred stock. IN DECLARING DIVIDENDS ON PREFERRED STOCK, the arrearages of one year cannot be paid out of the earnings of a subsequent year, when the by-law of the corporation upon the subject implies that the entire net earnings of each year shall be paid out in dividends. PROFITS GENERALLY MEAN the gain which comes in or is received from any business or investment where both receipts and payments are to be taken into account. June, 1887.] HAZELTINE v. BELFAST ETC. R. E. Co. 331 PROFITS FOR YEAR MEAN the surplus receipts after paying expenses, and restoring the capital to the position it was in on the first day of the year. NET EARNINGS OF RAILROAD ARE GROSS RECEIPTS less the expenses of oper- ating the road to earn such receipts. Among these expenses is in- cluded interest on debts. RIGHTS OF PREFERRED STOCKHOLDERS ARE ENFORCEABLE against the cor- poration according to the terms of the contract made by them. DIVIDENDS MAY BB PAID, although the corporation is not free from floating debt. PREFERRED STOCKHOLDERS ARE ENTITLED TO DIVIDENDS from earnings on hand, without first making provision for the payment of the principal of the bonded debt, where the corporation is in good circumstances and credit, and could doubtless provide for an extension of the time for pay- ing such debt, or make payment by the issue of other bonds. EQUITY WILL COMPEL DIRECTORS OF CORPORATION TO DECLARE DIVIDEND in favor of holders of preferred stock, who are shown to be entitled thereto. BILL in equity on behalf of the holders of preferred stock in the Belfast and Moosehead Railroad Company, to compel the declaring of a dividend in their favor. William H. Folger, for the plaintiffs. Drummond and Drummond, for the defendants. By Court, PETERS, C. J. The facts of this case, and most of its questions, were before the court in the case of Belfast etc. R. R. Co. v. Belfast, 77 Me. 445. The preferred stockholders of the company are now complainants against the company and its directors, seeking to obtain through a court of equity divi- dends on their stock. On March 20, 1886, when this bill was brought, the follow- ing facts existed: The road was, and since May 10, 1871, had been, leased to the Maine Central Railroad Company, the lease to run until May 10, 1921, the lessee to operate the road during the intervening period at its own risk and expense, to keep it in repair, and pay all taxes thereon, and pay a rent of $36,000 per year. The common stock amounts to $380,400, and the preferred to $267,700, all paid in, amounting at par value to $648,100. The road cost $1,050,000. The means expended for its con- struction, besides stock paid in, consisted of a bonded debt of $150,000, a floating debt of $150,000, and an indebtedness to the city of Belfast, the principal stockholder, of $101,900 for borrowed money. The bonded debt is secured by mortgage on the road, the principal of which will mature May 15, 1890, 332 HAZELTINE v. BELFAST ETC. R. R. Co. [Maine, having existed in the same form since May 15, 1870, the in- terest thereon having been regularly paid semi-annually. It is the only debt existing against the company, nor is it pre- tended that any other can arise against the company from this time to the end of the lease in 1921. The company's ex- penses are trifling, being only such as are necessary to keep up a formal corporate organization. The floating debt had been wholly extinguished, the borrowed money paid, and there were in the treasury $22,412.32 of cash assets, all from rents received under the lease, at the date of this complaint. At that time the directors had laid aside out of money on hand nineteen thousand nine hundred dollars which, with future rents, might be available as a reserve fund wherewith to pay the bonded debt when- it matures in 1890. But before this appropriation, which can easily be recalled, the complain- ants had used due diligence in the way of demands, notices, motions, and other movements to obtain from the directors a recognition of their equitable right to a dividend. Three questions arise on the facts, 1. Are the preferred stockholders entitled to annual dividends, if earned ? 2. At the date of the bill, had dividends been earned ? 3. Is this a case authorizing the court to require the directors to declare a dividend ? While all of these questions were hardly before the court in the former case, to be directly adjudicated, still they were necessarily involved in it, and we then considered them care- fully, hoping the parties would be satisfied with the results which were foreshadowed, without proceeding with further litigation. We then indicated that we were of the opinion that the preferred stockholders would be entitled to dividends after the floating debt became paid, and after considering the questions anew, we at this time see nothing to require us to change that opinion. There can be no possible doubt that the obligation of the company to the privileged shares rests on by-law 18, and that the by-law establishes the terms of a contract between com- pany and stockholders. We have already so decided. The by-law runs thus: "Dividends on the preferred stock shall first be made semi-annually from the net earnings of the road, not exceeding six per centum per annum, after which dividend, if there shall remain a surplus, a dividend shall be made on the non-preferred stock up to a like per cent per an- num; and should a surplus then remain of net earnings, after June, 1887.] HAZELTINE v. BELFAST ETC. R. R. Co. 333 both of said dividends, in any one year, the same shall be divided pro rata on all the stock." The construction which we gave to this contract in the pre- vious case was certainly very liberal towards the holders of the common stock, and all the doubts were weighed in theii behalf, in the decision that the preferred stock was non-cumu- lative. Had the by-law merely provided that the preferred shares should be entitled to a dividend of six per cent an- nually when earned, the arrearages of one year would have been payable out of the earnings of subsequent years, and there would have been no occasion for the present controversy between the two classes of stockholders. There is no ques- tion among the authorities on this point: Jones on Railways, sec. 620; Morawetz on Corporations, 2d ed., sec. 458; Cook on Stock and Stockholders, sec. 272. The latter author, in a note to section 269 of his work, published in 1887, cites Belfast etc. R. R. Co. v. Belfast, 77 Me. 445, supra, as inconsistent with the general rule, but states the ground for the variance: thai inasmuch as the by-law implies that the entire net earning? of each year should be paid out in dividends, a deficiency o? preferred dividend in any year could not be made up in sub sequent years. The next question is, whether the money on hand shall be regarded as net earnings out of which a preferred dividend should be paid; and the question has been discussed, second- arily, as to what extent future earnings under the lease will come under the same head. This point depends usually on several considerations, is a relative question, not always susceptible of clear demonstration, and is a matter to a con- siderable extent of good judgment in conducting the com- pany's business, and of good faith in upholding its contracts on the part of directors. All the cases in which an inquiry has arisen concerning the propriety or legality of paying preferred dividends, where the contract is to pay as often as annually, if there are annual earnings, concur in this, that the inquiry must be whether net profits have been earned in the particular year at the expira- tion of which dividends are demanded. The future wants and liabilities of the company may, no doubt, be taken into the calculation to a certain extent, as will be more fully ex- plained hereafter. We think that under any of the approved definitions of net 334 HAZELTINE r. BELFAST ETC. R. R. Co. [Maine, earnings, meaning such net earnings as are applicable to divi- dends, the complainants make out a case. Certainly, in a literal view, there must be net earnings each year till 1890, if not up to the end of the lease. For the bills payable are $9,000 per annum, a trifle only more, and bills receivable are $36,000, leaving $27,000 balance on hand each year. The preferred dividend would be $16,062 per annum, leaving about $11,000 in the treasury annually. This balance cannot now possibly be paid on any debt of the company. It is only claimed by the respondents that in the future it may be so used. In Hill v. Supervisors, 4 Hill, 20, it is said: "Profits gen- erally mean the gain which comes in or is received from any business or investment where both receipts and payments are to be taken into account." The case of Dent v. London Tram- way Co., L. R. 16 Ch. 344, strongly resembles the present case on this point. There, as here, the preference dividends were dependent upon the profits of the particular year only. Jessel, master of the rolls, says: "That means this, that the preferred share-holders only take a dividend if there are profits of the year sufficient to pay their dividend. They are co-adventurers for each particular year, and can only look to the profits of that year. If they are lost for that year, they are lost forever. Profits for the year mean the surplus receipts after paying expenses and restoring the capital to the position it was in on the first day of January of that year ": Elkins v. Camden and Atlantic R. R. Co., 36 N. J. Eq. 233, decided in 1882, presents questions similar to the present, and announces the rule that the preferred stockholders' " rights are to be gov- erned and regulated each year by the pecuniary condition of the corporation at the close of the year." In Morawetz on Corporations, 2d ed., sec. 459, an approved work, the doctrine is stated: "The directors of a corporation have a discretionary power to withhold profits from the holders of common shares in order to accumulate a surplus, etc.; but it is the duty of the directors to pay the preferred share-hold- ers their promised or guaranteed dividends, whenever the com- pany has acquired funds which may rightfully be used for the payment of dividends. This rule applies with peculiar strict- ness where the preferred share-holders are entitled to receive their dividends annually out of profits earned during the cur- rent year only, and a deficit in any year does not become payable out of subsequent profits." June, 1887.] HAZELTINE v. BELFAST ETC. R. R. Co. 335 But apply to the question the definition of net profits which would be regarded as the most liberal to the company, or the holders of the common stock; allow that there must be net profits such as should be applied to dividends; and that funds may be kept on hand sufficient to make reasonable provision for both the present and future necessities of the company. A very much quoted definition, as applicable to railroad corpora- tions, is that formulated by Mr. Justice Blatchford in St. John v. Erie R. R. Co., 10 Blatchf. 271: "Net earnings are, prop- erly, the gross receipts less the expenses of operating the road to earn such receipts. Interest on debts is paid out of what thus remains, that is, out of net earnings. Many other liabili- ties are paid out of the net earnings. When all liabilities are paid, either out of the gross receipts or out of the net earn- ings, the remainder is the profit of the share-holders to go toward dividends which in that way are paid out of the net earnings." This definition was substantially repeated in Warren v. King, 108 U. S. 389, Mr. Justice Blatchford, upon another bench, delivering the opinion, and asserting that " while the rights of a preferred stockholder are not to be superior to the rights of creditors, they are nevertheless en- forceable against the company according to the terms of the contract made by them." We refer to the views to which we committed ourselves upon this branch of the case in Belfast etc. R. R. Co. v. Belfast, 77 Me. 452, before cited. It will be noticed that the definition of net profits, in the case of railroad corporations, which are generally more heavily in debt than other kinds of business corporations, calls for the payment of interest on the company debt, but not necessarily for payment of any portion of the principal. At this point the parties come to a closer issue and really to the turning- point of the controversy; and that is, whether the bonded debt of one hundred and fifty thousand dollars, due in 1890, must be first wholly paid before any declaration of dividends. The respondents so contend. The complainants contend that, in ascertaining net profits, a portion only of the earnings should be reserved for the payment of the debt, and that the debt, or some portion of it, when it comes due, should be extended in Borne form. The authorities on the subject of ascertaining what are the annual net profits or earnings of a railroad corporation, per- haps without exception, make a distinction between the pay- ment of its floating debt and the payment of its permanent or 336 HAZELTINE v. BELFAST ETC. R. R Co. [Maine, bonded debt, between ordinary and extraordinary indebted- ness. It is not indispensable, however, that the company be free from the pressure of floating debt before it may lawfully pay dividends even to holders of its non-preferred stock. It may, even under some circumstances, borrow money to pay dividends: Morawetz on Corporations, 2d ed., sec. 438, and cases. In many cases there is difficulty in ascertaining what thd actual condition of a company may be. None exists here. There could not well be an instance of less complicated affairs. The business of the company is guaranteed, its amount of income fixed, its expenses are nominal, and its freedom from all the liabilities and risks usually incident to the manage- ment of a railroad is assured for the next thirty-three years. In every sense this last debt of one hundred and fifty thou- sand dollars is a permanent debt. It is a bonded, mortgage, and interest-bearing debt. The lease secures it many times over. The road itself is an absolute security for it, and un- deniably for much more. It is a permanent debt for another reason. It entered into the construction of the road, and is represented in its permanent property. A distinction between expenses for construction and ordinary expenses is maintained in the leading cases on this subject. The argument is, that capital paid in and capital borrowed unitedly produced the earnings, and that a proportionate share of the earnings should be accorded to each: Belfast etc. R. R. Co. v. Belfast, 77 Me. 453. In that view the bonded debt earns but nine thousand dollars per annum of the thirty-six thousand dollars earned in all. It will be readily seen that there are special reasons for deeming the complainants' claim equitable. They have been required to remain in waiting for dividends for many years, in order that a large amount of the company's indebtedness, say two hundred and fifty thousand dollars, should be first paid, quite an exacting construction against them being re- quired to produce such result. The company or its common share-holders would have suffered no injustice had the debt to the city of Belfast been placed in a permanent funded form. Another thing, before spoken of, which favors the complain- ants is, that by our former opinion their dividends were held to be non-cumulative, and if lost now are forever lost. Still another thing may be of importance enough to be taken into account, and that is that the corporation is paying six per June, 1887.] HAZELTINE v. BELFAST ETC. R. R. Co. 337 cent interest on its bonds, and receives about one third inter- est on the sums which it proposes to keep on hand. The respondents go further than to deny that net profits have been or will be earned; they contend that they should not be divided even if they have been earned. Of course all the net earnings of an indebted company should not always - be devoted to dividends. We think a company should have a right to base its calculations upon a final payment of its debts at some time. But steps in that direction are not to be untimely, or oppressive to other interests, and should be suchi as not to unreasonably interfere with the expectations or inter- ests of stockholders, and such as will not prevent a reasonable performance of all other obligations which have been assumed, by the company. The more practical question is as to how far the earnings shall be reserved, and how far divided. But . it comes round to the primary question, which is, Have net, profits been earned, such as are reasonably applicable to divi- dends? The argument of the learned counsel for the respond- ents seems to proceed upon the idea that the complainants have a prior right to receive dividends only whenever they have been actually declared, but that the company has the- right to refuse to declare dividends, whether they have been* earned or not. Such is not the letter or spirit of the contract, entered into. The promise of the company was, that divi- dends semi-annually from net earnings " shall be made." But when the present mortgage debt of one hundred and. fifty thousand dollars was established, it was to be paid in twenty years, and shall it not be paid at the end of that time, asks counsel. It may have been supposed that twenty years would be long enough for the debt to run without a renewal. But if it was even supposed that the debt could be conve- niently paid at maturity without renewal, was it not calculated by the parties that dividends would be, in the mean time, distributed to the preferred stockholders? The result only proves a miscalculation by the company of its ability to liter- ally perform its obligations. Is it an excuse for not declaring dividends out of net earnings, provided there are net earn- ings, merely that a company cannot pay an entire bonded debt at maturity without creating a new debt or borrowing again? Is it not reasonable to require the company to keep, all its obligations, when they can easily do so? If the com- pany had no means or credit which would enable them to place a new obligation on the market Miere would be force in AM. ST. Rt p.. VOL. I. -a 338 HAZELTINE v. BELFAST ETC. R. R. Co. [Maine, the position. But no such inability is, or possibly can be, pre- tended. Can it be said that a railroad company makes no net profits in a year in which it gains thirty-six thousand dollars, and has only nine thousand dollars to pay out, be- cause it owes one hundred and fifty thousand dollars, payable in four years, abundantly secured upon its property, when the company has a perfect credit, and abundant means to enable it to replace the old with a new loan on advantageous terms? Does a merchant who carries on business partly on borrowed capital earn no profits in a year, at the end of which, besides retaining his capital, he has received twenty-seven thousand dollars more than all he has paid out, simply because he owes a debt for his borrowed capital, which he has abundant abil- ity to pay, but not without further borrowing? Says Mora- wetz, Corporations, sec. 439: "In ascertaining whether a -company has a surplus which nay be divided among the share-holders, permanent improvements made by means of borrowed money may often be valued as counterbalancing the liability of the company for the money used to construct rthem." Two cases are relied on for the respondents, neither of which appears to us as having any tendency to support their general position. One is Karnes v. Rochester R'y C,., 4 Abb. Pr., N. S., 107. That case shows that two sets of railroad directors were chosen, and a controversy was going on between them as to which was the legitimate board. Pending that litigation, a common share-holder there was no preferred stock brought a bill to have all the moneyed assets of the corporation dis- tributed among the stockholders. There were thirty-six thou- sand dollars in government bonds on hand, the debt was seventy thousand dollars, due in seventeen years, the annual expenses were about ten thousand dollars, and the bill, which was demurred to, did not allege whether there was any annual balance of profits or not. The court, amongst other grounds of decision, said that no breach of any obligation on the part of the company to the stockholders, nor any omission of duty, was alleged; that the acts of directors should not be inter- fered with by courts, except to prevent injustice; that the corporation could make no dividends, and the directors were not a party to the bill; that there was nothing to indicate that the money on hand was not needful for the security of the creditors of the company; u hat it was not even alleged ithat the directors had refused to make a dividend, nor stated June, 1887. ] HAZELTINE v. BELFAST ETC. R. R. Co 339 that one, in justice, ought to be made; and the bill was dis- missed. The other case is New York etc. R. R. Co. v. Nichals, lately determined in the supreme court of the United States, re- ported in 15 Fed. Rep. 575. The case was first decided in the circuit court, 21 Blatchf. 177, where it was held that the company could not, against the interests of preferred stock- holders, divert a large quantity of funds from them to other uses of the company. The decree was reversed in the upper court, not for any difference between the two tribunals as to the law of the case, as stated by the judge below, but upon a differ- ence of opinion in making an application of the law to the facts. The points of the case are correctly represented by the head-notes, which are as follows: "The holder of preferred stock is not entitled absolutely to a dividend, even if there be ' net earnings ' from which such dividend might be paid. The directors may use the ' net earnings ' for the improvement of the road, where such improvement is shown to be imperatively necessary to the preservation of the corporate property and the continuance of the corporate business." The court were deeply impressed with the uncontradicted testimony of the president of the company, that u but for using the funds in question in that case, the company could not have paid its fixed charges, but would have again gone into bankruptcy, and the entire interest of the stockholders been destroyed." That is unquestionable doctrine. Preferred stockholders are not to be protected to the extent of endangering the rights of creditors, or of wrecking or crippling the enterprise of the road: Clark on Stockholders, sec. 271; Culver v. Reno etc. Co., 91 Pa. St. 367. The condition of the railroad above alluded to, the Erie sys- tem, illustrates the fallacy of the claim that all the earnings of a railroad corporation should be withheld from stockhold- ers until its debts are paid. That company has a capital of over seventy-seven million of common and preferred stock, and an indebtedness exceeding one hundred million of dollars, secured and unsecured. The court need not have troubled itself over the difficuKi38 presented in that case, if it had had the courage to assume that the preferred stockholders were not entitled to dividends until the one hundred million dollars of dfU were paid. There is hardly a railroad company in the world that has not a funded debt. Such a rule would work an injustice amounting to cruelty in many cases. Section 100, 340 HAZELTINE v. BELFAST ETC. R. R. Co. [Maine, chapter 42, of the Revised Statutes provides that savings banks may invest their deposits in the stocks of any dividend pay- ing railroad in New England. How would the rule contended for work with savings bank deposits invested in Maine Central railroad stock, a company having three million six hundred thousand dollars stock and eleven million dollars of indebt- edness; or in the Boston and Maine, with a debt of seven mil- lion dollars; or in the Boston and Albany, with a debt of ten million dollars; or, if we look out of New England, in the Chicago, Burlington, and Quincy Railroad Company, one of the most- reputable companies in our country, having more than eighty million dollars of funded indebtedness ? What would annuities and life estates be practically worth to the holders of them in railroad companies, under a rule which allowed no dividends until all debts are paid. The history of railroad enterprises teaches us that the old liabilities of companies are well-nigh habitually paid by the creation of new ones, the gen- eral design being to lessen the liabilities, which are represented in the construction, by gradual processes. The last point which the case presents is, whether the court can interfere in behalf of the complainants. We think it can and should. The directors refuse to perform a duty. They ignore a contract. They are chosen by the holders of the com- mon stock, who are the majority, and are hostile to the interest of the complainants. We asserted the right of the court in the former case, and there cited authorities in support of it. Says Morawetz, Corporations, sec. 280: "Where certain share- holders are entitled to privileges which do not belong to the other members of the company, the court will provide a remedy for an infringement of these privileges by the other share-holders of the company's agents": See Cook on Stock and Stockhold- ers, sec. 541, and cases. Says Wheeler, J., in Lake Erie etc. R. R. Co. v. Nickals, supra: " When it comes to the question of using the profits which would go to one set of stockholders foj the benefit of another set, a more rigid rule should be upheld. The question becomes more one of right to be determined by the law, than one of policy to be determined by the discretion of the directors." When the resolution of directors makes an alteration in the priorities and payments provided in the memorandum of association, it is beyond their power, and may be interfered with by the court: Ashbury v. Wa.tson, L. R. 30 Ch. 376. Even an action at law was allowed on a con- June, 1887.] HAZELTINE v. BELFAST ETC. R. R. Co. 341 tract to make a dividend of earnings: Bates v. Railroad Co., 49 Me. 491. But has the court the power, asks the learned counsel, to prevent a company paying its debt when it becomes due? Not at all. On the contrary, the court would compel the com- pany to pay its debts to the letter. It will also exercise its power in a legitimate case to require the company to keep its other obligations, legal or equitable. While the company does not owe a debt to the preferred share-holders, it does owe them an obligation, founded upon a contract which is as sacred as any other contract. If the company had not sufficient means or credit with which to pay its debts without applying upon them the funds in question, the funds should be so used. But no creditor makes opposition to complainant's claim, nor have they any occasion to. The creditors must be protected, and BO must the different classes of stockholders, according to their respective rights. If the preferred stock is in the way of an earlier enjoyment of dividends by the holders of the common stock than otherwise would have been, it is an impediment of the company's own creation. The contract to pay dividends on preferred stock was upon the sole condition that net earn- ings are possessed by the company. New conditions cannot be imposed by the company alone. Good faith forbids it. Finally, what shall the decree be? The complainants, ad- mitting that the mortgage debt should be paid within some reasonable time, which must from necessity be somewhat arbitrarily fixed, and adopting the scheme suggested by the court in the former case, ask that a decree be passed allowing dividends for the present and the future for such an amount semi-annually as will not deprive the company of an oppor- tunity of extinguishing its debt within the life of the lease, if it desires to, and of paying dividends to the preferred stock- holders during the same period. That would require a calcu- lation which a master, and not the court, should make, and we are inclined to the view that such an extensive decree may not be expedient, all things considered, at the present junc- ture. The future action of the company may make such a comprehensive proceeding avoidable. The limited and more direct inquiry is, whether on Janu- ary 1, 1886, the company should have declared a dividend on the preferred stock, requiring therefor the payment of $16,062. We think, as between itself and that class of stockholders, it was possessed of net earnings enough, which by its agreement 342 WOODMAN v. PITMAN. [Maine, it had pledged for that purpose. It had $22,412.32 in its treasury; it received $18,000 in addition on May 10, 1886; it had nothing to pay until a half-year's interest, $4,500, became due on May 15, 1886. Bill sustained with costs. Decree according to the opinion. WITH RESPECT TO ASCERTAINING PROFITS OF RAILROAD CORPORATION, the following rule, formulated by the master of the rolls, appears to be in harmony with the principal case: "I am of opinion that all the debts of the company are first payable, other than those which, for want of a better ex- pression, may be called funded debts; for instance, if the defendants have raised money by mortgage, under the powers contained in their act, for the purpose of completing their line, this does not constitute such a debt as can be paid off out of the profits before the profits are divided. But, on the other hand, any debts which have been incurred, and which are due from the di- rectors of the company, either for steam-engines, for rails, for completing stations, or the like, which ought to have been and would have been paid at the time, had the defendants possessed the necessary funds for that pur- pose, these are so many deductions from the profits, which, in my opinion, are not ascertained till the whole of them are paid ": Carry v. Londonderry and Enniakillen R'y Co., 29 Beav. 272. WOODMAN v. PITMAN. [79 MAINE, 456.] RIGHTS OP TRAVELING UPON OR OF HARVESTING ICE upon a navigable river are not absolute in any person, but are public rights, which belong to the whole community; their enjoyment depends very much upon first appropriation, as one man's possession may exclude others. RIGHT TO TRAVEL UPON AND TO HARVEST ICE on navigable rivers are rela- tive or comparative. Each must be exercised reasonably, depending upon the importance of the different rights in different localities, and the benefits which the community derive therefrom. LEGISLATURE HAS CONSTITUTIONAL AUTHORITY to provide rules regulating the possession and cultivation of ice upon navigable rivers, where the tide ebbs and flows, at least so far as the business is carried on below low-water mark, and it may provide for the adjustment of conflicting interests which may affect that privilege. IN ABSENCE OF STATUTE, JUDICIAL AUTHORITY may determine the manner in which the privileges of the possession and cultivation of ice on navi- gable rivers may be best enjoyed by the public, provided no violence is done to existing law. PRIVILEGE OF HARVESTING ICE on the Penobscot River at Bangor, and for some distance below, is incomparably greater than that of traveling on the ice, and the latter privilege cannot be set up to prevent or abridge the former to any extent whatever. RIGHT OF TRAVEL ON ICE on navigable rivers in all places is generally in- ferior to the right of navigation. Whether it can ever become a superior right depends upon circumstances. June, 1887.] WOODMAN v. PITMAN. 34e? HARVESTING ICE ON NAVIGABLE RIVERS becomes a nuisance only when actual injury is sustained by the public, and an unlawful obstruction to navigation is caused thereby. ICE-FIELDS ON NAVIGABLE RIVERS, after being staked, fenced, and scraped, and, in some instances, connecting fields extending across the river, ara- so far the property of the appropriatof that an action will lie against on* who disturbs his right. APPROFRIATORS OF ICE oy NAVIGABLE RIVERS should by suitable means- reasonably guard their fields from danger to persons who may be likely to innocently intrude upon them. But the former are not liable for the^ negligence of the latter, to which they do not contribute. THOUGH APPROPRIATOR OP ICE on navigable river may have left his field, unprotected from danger to a traveler, still he is not liable for an injury- caused by the traveler's negligence and want of exercise of ordinary care~ Charles P. Stetson, for the plaintiff. Wilson and Woodward, for the defendants. By Court, PETERS, C. J. This case largely depends for its solution upon what may be the extent of the right to harvest ice from our large rivers, compared with the conflicting right of traveling upon such rivers during the winter season. This- is an interesting topic of inquiry, in view of the importance^ which ice has lately assumed as a merchantable commodity,, and is a branch upon which the law has as yet hardly- passed beyond a formative period. The inexhaustible and ever-changing complications in humar affairs are constantly presenting new questions and new conditions, which the law must provide for as they arise; and the law has expansive and adaptive force enough to respond to the demands thus made? of it, not by subverting, but by forming new combinations and! making new applications out of its already established princi- ples, the result produced being only " the new corn that cometh out of the old fields." Neither of the rights which seem in conflict in the present case that of harvesting ice and that of traveling upon the ice is absolute in any person. No one has any absolute? property in either. They are derived from a natural right,, which all have, to enjoy the benefit of the elements, such as* air, light, and water, and are common or public rights, which belong to the whole community. In the Roman law, they were classified as "imperfect rights." Not that all person* can or do enjoy the boon alike. Much depends upon first appropriation. One man's possession may exclude others- from it. Says Blackstone, 2 Com. 14: "These things, so- long as they remain in possession, every man has a right to 344 WOODMAN v. PITMAN. [Maine, njoy, without disturbance; but if once they escape from his custody, or he voluntarily abandons the use of them, they re- turn to the common stock, and any man else has an equal right to seize and enjoy them afterwards." They are the sub- jects of qualified property by occupation: 2 Kent's Com. 348. Each right is, in theory, speaking generally, relative or comparative. Each recognizes other rights that may come in its way. Each must be exercised reasonably. And what would be a reasonable exercise of the one or the other at any particular place for clearly there would be a difference in the relative importance of the different rights in different lo- calities depends in a large degree upon the benefits which the community derive therefrom. The public wants and ne- cessities are to be considered. The two kinds of franchises belong to the people at large, are owned in common, and the common good of all must have a decisive weight on the ques- tion of individual enjoyment. These and all other public rights, and the relation that shall subsist between them, when not thereby trenching upon congressional jurisdiction, may be regulated by the legislature. The legislature is the trustee of the public rights for the peo- ple. And as such agent or trustee, the legislature of this state has gone a great way in abridging an individual enjoyment of some of the common rights and privileges possessed by society, when the legislation has presumably inured to the common good. It authorized the changing of the channel of Saco River, although the effect of the diversion was to impair the value of a good deal of private property: Spring v. Russell, 7 Me. 273; has allowed private interests to be subserved to the injury of other private interests, by permitting dams and mills to be erected which prevented the flow and ebb of the tide, upon the ground that the public, as a whole, were to be bene- ted thereby: Parker v. Cutler Milldam Co., 20 Id. 353; 37 Am. Dec. 56; has granted to a single individual the exclu- sive right of navigating Penobscot River above the tide with steamers for a period of twenty years, for the consideration of improvements to be made in the navigation of the river by the grantee: Moor v. Veazie, 31 Me. 360; 32 Id. 343; 14 How. 568; 52 Am. Dec. 655. These are illustrations of the legisla- tive power in such matters. The legislature has the constitutional authority, no doubt, to provide rules regulating the possession and cultivation of the ice-fields upon our navigable rivers, where the tide ebbs June, 1887.] WOODMAN v. PITMAN. 345 and flows; at all events, so far as the business is carried on below low-water line, and for the adjustment of conflicting interests which may affect that privilege. If it omits to do so, such matters necessarily become the subjects of judicial inter- pretation. While the judicial is not co-extensive with the legislative jurisdiction upon the questions, there can be no doubt that it is within the scope of judicial authority to deter- mine the manner in which such public privileges may be best enjoyed by the public, provided that any judicial regulation which may be attempted shall do no violence to existing law. The law is subject to slow and gradual growth. A remark- able instance of the development of the law is seen in the doctrine unanimously adopted by the courts in this country, that a river may be considered navigable, although not affected by a flow of the tides from the sea. The common law was otherwise. Lord Hale, the great publicist, knew no such doc- trine. Legislation did not create it. The courts felt obliged to adopt the interpretation, as a new application of an old rule, from an irresistible public necessity. The court of no state has probably ventured so far as this court has, in maintaining that small streams have floatable properties belonging to the public use. Our climate and forests, together with the inter- ests and wants of the community, make the doctrine here reasonable, a reasonable interpretation of the law; while in some of the states, where less necessity for the doctrine ex- ists, it is considered by their courts to be untenable as sub- versive of private rights. So in handling the somewhat novel and important questions now pending before us, we are cer- tainly at liberty to construct out of admitted legal principles such reasonable rules as will meet the requirements of the case. The importance to the public of the ice privileges within the territory before named is incomparably greater than is that of traveling on the ice. Winter river-roads are of much less consequence at the present day than formerly. In the earlier days, the natural ways were the only ways for travel, and upon the large ponds and lakes and upon the rivers in remote places, the same necessity may even now exist. But at Bangor, and for some distance below, the principal area of Penobscot River from which the ice cuttings have been for some years customarily taken, the public have no need of a way on the ice. The traveler receives much more than an equivalent for any deprivation of the natural passage, in the 346 WOODMAN v. PITMAN. [Maine, use of the roads on the banks of the river, at all times kept passable at the public expense. Roads over the ice are rarely suitable and passable, only occasionally so. The access to them from tjie shores is difficult if not- dangerous, where the tide, as it does here, ebbs and flows. Permission must be had of the riparian proprietor to cross his land, to enable one to get to the river without being a trespasser. The inconveni- ences render the privilege nearly, if not quite, worthless. Nor is any considerable use of the river for such purpose proved or suggested. On the other hand, the business of gathering ice for mer- chantable purposes has assumed extraordinary importance on our rivers. Large amounts of capital are invested; thousands of men and of teams are employed at a season of the year when other employment cannot be obtained by them; the outlay is mostly in bills for labor, widely circulated ; a crop of immense value is annually produced from an exhaustless soil without sowing; the shipping business is materially aided by it; the wealth of the state is greatly increased by it; it is eminently a business of the people. It would seem unrea- sonable to embarrass such an important enterprise by accord- ing to the traveling public a paramount right of passage, when such right, even to its possessor, is scarcely good for anything. It is an error, we think, to invest the right of passing on the ice in all places with the same degree of importance as that which attaches to the right of vessels in navigable waters. It may be an offshoot of the navigable right, something akin to it, but a right of a secondary or inferior degree. The idea of roads over the frozen surface of rivers was never broached in the old common law, it has grown up since, and should be the superior right or not, according to circum- stances. We know of only one judicial decision touching the subject, that in our own state, French v. Camp, 18 Me. 433; 36 Am. Dec. 728; and that does not contradict the views we express in this discussion. There the plaintiff's injury came from the defendant's carelessness in cutting a hole through the ice, and leaving it exposed upon or near a place where there had been a winter road for more than twenty years. Weston, C. J., there says: "Assuming that the defendant has as good a right to the use of the water as the plaintiff or the public generally had to the right of passage, the use of a common privilege should be such as may be most beneficial and least injurious to all who have occasion to avail them- June, 1887.] WOODMAN v. PITMAN. 347 selves of it." In the present case, it must be remembered, the defendants are not defending themselves as riparian owners, for that would justify their possession only to low- water line, but as a portion of the public, partaking of a com- mon and public right: Brastow v. RocJcport Ice Co., 77 Me. 100. An unlawful obstruction to navigation, being a common nuisance, is remedial by indictment or by abatement; or a court of equity may take jurisdiction upon an information filed by an attorney-general: Gould on Waters, sec. 121. It would seem strange to see the ice harvesters accused of nui- sance. But nuisance exists in lawful business only where actual injury is sustained. It must be some essential injury and damage. " People living in cities and large towns must ubmit to some annoyance, to some inconvenience, to some injury and damage; must even yield a portion of their rights to the necessities of business": Wood on Nuisance, 11. In an English case, it was said: "Where great works are carried on, which are the means of developing the national wealth, persons must not stand on extreme rights, and bring actions for every petty annoyance": St. Helens Smelting Co. v. Tip- ping, 11 Jur. 785, reported in 116 Eng. Com. L. 1093. In Rhoades v. Otis, 33 Ala. 578, 73 Am. Dec. 439, a much-quoted case, the test of the floatability of a stream was heid to be, whether fit for valuable floatage and useful to important pub- lic interests. In Wethersfield v. Humphrey, 20 Conn. 218, it was held that, in order to make a stream navigable, " there must be some commerce and navigation upon it which is es- sentially valuable": Wethersfield v. Humphrey, 22 Id. 198. Navigators must endure inconveniences for the greater gen- eral good: Brown v. Town of Preston, 38 Id. 219. To consti- tute nuisance, the obstructions must materially interrupt general navigation: State v. Wilson, 42 Me. 9. In Rowe v. Granite Bridge Co., 21 Pick. 344, 347, Shaw, C. J., said: "But in order to have this character, it must be navigable to some purpose useful to trade or agriculture." In Attorney-General v. Woods, 108 Mass. 436, 11 Am. Rep. 380, it is said that this language is applied to the capacity of the stream rather than to its uses. But the last was a case where the officers of the commonwealth were endeavoring to prevent an act supposed to injuriously affect the harbor of Boston. It is our opinion that any occupation of the Penobscot River, within the limits now receiving our attention, for the purpose of a winter way, would be, at this day, of such insig- 348 WOODMAN v. PITMAN. [Maine, nificant importance, so useless and valueless in comparison with other public interests, that it cannot be set up to prevent or abridge the taking of ice within those limits to any extent whatever. We do not, however, apply the rule stated to any place where a way is commonly used across the river, connecting town or county roads, or where a ferry is established by law: R. S., c. 20, sec. 7. The traveler's right, even if existing theoretically, does not under the circumstances assert itself. Reasonable use is practically no use. The same public, possessing both rights, prefer to abandon the use of the one for the much more valu- able use of the other. We are aware that the law, in facilitating the enjoyment of public rights, and no private right is involved in this con- troversy, scans closely the grounds upon which it admits the advantage of one person to be set off against the disadvantage of another. In an early English case, Rex v. Russell, 6 Barn. & C. 566, an extreme rule was promulgated, in later cases not fully assented to, that staiths erected in the river Tyne should not be regarded as a public nuisance, if the public benefit pro- duced by them countervailed the prejudice done to individu- als, the supposed public benefit being that, in consequence of the erections, coals would be brought to the London market in better condition or for lesser price. In subsequent cases it has been maintained that the benefit to be derived from toler- ating any impairment of the navigable convenience must be direct, and that the staiths in the Tyne were a remote and in- direct benefit merely, and not computable as a public benefit in the sense of the term in which it should be used when con- sidering the question of nuisance; and it has been explained that the benefit must be a public benefit to the same public; that the same public, or some part of the public which suffers the inconvenience, must also receive the benefit; that it must be both beneficial and injurious to the public using the same waters. A satisfactory explanation of the doctrine appears in a dis- mssion by Hessel, master of the rolls, in Attorney- General v. Ferry, L. II. 9 Ch. 423, where he says: " Then it may be asked, What is a public benefit? In my view, it is a benefit of a sim- lar nature, showing that on a balance of convenience and in- convenience the public at that place not only lose nothing, but gain something by the erection." In that case, it was decided June, 1887.] WOODMAN v. PITMAN. 349 that any benefit in the way of gaining trade to a single individ- ual erecting a wharf in navigable waters was too remote to be held to be for the advantage of the public generally, when the channel intruded upon was so narrow that every foot of it was wanted for navigation. In the opinion, an illustration of public benefit is given, by supposing the piers of a bridge to be placed in the middle of a navigable river, thereby, " to some extent, to a more or less material extent, obstructing the navigation," but the necessity is great and the injury trifling. In that case, says the opinion, "it would be a benefit that would counter- balance the public injury." Applying the doctrine as carefully as it is guarded in the cases most widely differing from the case of Rex v. Russell, above cited, we feel assured that our conclusions are correct in sustaining the contention of the present defendants. Here, the ice-gatheEer and the traveler belong to the same public, have presumably interests alike, were using the same river, the same waters, though in different ways. The ice-takers were occupying the river under the natural right of dipping water therefrom, and it is as if thousands of men were simultaneously exercising the right together. The enterprise directly fosters the interests of navigation on the river. On the other hand, as we have before said, the right of the traveler, so far as per- taining to the navigation of the river, is, under the circum- stances, at most a secondary, theoretical right, and of no real and essential value. Even private property may be taken for public use by affording compensation. Here, if the traveler is not allowed the use of the river, it is because more than com- pensation is supplied to him in other roads provided for his use. We think the trial was conducted upon a too literal appli- cation of the principles which govern the use of navigable streams, and that the jury were thereby prejudiced against the defendants to their injury. These views being accepted, it necessarily follows that this portion of the river should be considered as virtually closed during the winter against general traveling. The whole tract cut over must be constantly beset with danger to a traveler who does not keep up an especial acquaintance with the con- dition of the ice. Besides, the ice-fields, after they have been ntaked and fenced and scraped, and in some instances con- necting fields extend across the river, have so far become the property of the appropriator that an action would lie against 350 WOODMAN v. PITMAN. [Maine, one who disturbs his possession: People's Ice Co. v. Steamer Excelsior, 44 Mich. 229; 38 Am. Rep. 246. At the same time the appropriators should by suitable means reasonably guard their fields against exposing to dan- ger persons who may be likely to innocently intrude upon them, if such likelihood may be seen to exist. It is not neces- sary, in the present case, to inquire whether the- defendants sufficiently observed such caution or not, inasmuch as we are clearly of the belief that the plaintiff's servant in charge of his team was guilty of an act of carelessness which caused the plaintiff's loss. Even if the defendants were in fault, their delinquency would be a prior act, while the servant's was a subsequent, distinct, independent act. The defendants had no reason to suppose the servant would go in the direction he did, or be heedless in his course if he were to go there. As some judge said: "One man is not required to take another man's discre- tion in his keeping." At all events, the defendants' act or omission was not negli- gence against the plaintiff, not an act which the plaintiff can complain of. The idea is clearly expressed in 2 Law Quar. Rev. (London), p. 507: "The party who last has a clear op- portunity of avoiding the accident, notwithstanding the negli- gence of his opponent, is considered solely responsible for it." In such case defendants are not even guilty of contributory negligence; that is, their negligence does not in a legal sense contribute to it or participate in it. It is merely a passive agency, or condition, or situation, through or by which the accident happened, but no part of its real and controlling cause: O'Brien v. McGlinchy, 68 Me. 552, 557. The servant was hardly even a traveler on the river in the ordinary sense of the term. He was himself an operative at the ice-fields. He came with his team upon the ice by cross- ing defendants' land, striking a traveled way which led upon the ice, along the shore, up to the field of operations he was to engage in. From a freak of his own, instead of keeping the road, as properly he should, he crossed one of defendants' fields, as properly he should not, and while attempting to go across or around another field of theirs, his team broke through the ice and was lost. The pretense is set up that the defendants had no fence as a protective barrier at the end of the field extremest from the west bank of the river, to prevent the traveler from going upon June, 1887.] WOODMAN r. PITMAN. 35J the thin ice. None was needed. The exercise of ordinary care by the servant was all that was needed. There was a large ridge of snow and ice at the easterly end of the field, several feet high, thrown up by scraping the field from west to east in preparation for ice-cutting. It seems that the ice was left un- cut and solid for a space of twelve or fifteen feet in width inside of the piles or ridge, in order to afford space wide enough for a pair of horses to travel upon while cutting out and handling the cakes of ice. It is a risky track for any horses, but what dangers there are upon the track is incidental to the business. The servant confesses that he was acquainted with the mode of the business, that he knew that the ice had been scraped up to the ridge of snow, knew that there might be holes and thin ice where the field had been scraped, knew that he was going upon the scraped ice, and still he recklessly under- took to conduct his team on the inside of the ridge, when there was an abundance of room to drive safely outside of it. By his carelessness, for which there seems to be no rational ex- planation, the plaintiff's property was lost. Motion sustained. HASK.KLL, J., concurred in the result reached, but could not agree with the reasoning of the court. He considered the right of navigation in public waters paramount, and though they might be subjected to any other useful purpose, though that use might temporarily impede navigation, still when the use blocked navigation it must be suspended until the right of navigation was exercised. He contended that frozen navigable rivers were public high- ways, which ordinarily gave the traveler thereon the paramount right of passage as incident to the reasonable enjoyment of his right, which must be exercised in common with such uses as the river, when frozen, was adapted to. " One such use is the harvesting of ice, a use which may impede travel. Both are common rights, and both may be lawfully exercised; but both can- not be enjoyed at the same spot at the same time, because the one may be there destructive of the other, so that it may be reasonable for that use giv- ing the larger public benefit to restrict other uses to a narrower compass; but it cannot lawfully monopolize the whole right, to the utter destruction of all other rights. " Hia honor acknowledged that the business of gathering ice had become of great public benefit, and a remunerative and useful industry; still its nature necessarily required that it should not be subjected to a para- mount right of travel so as to destroy its reasonable enjoyment. But as both the traveler and the ice-gatherer were partakers in a common right, and as neither had such paramount right as to permanently and wholly destroy that of the other, both must exercise hU right reasonably under all of the circum- stances. Continuing, the learned jurist said that, in his opinion, if the pub- lic had appropriated a particular part of the ice on a stream or pond, and had worn a well-beaten track thereon, it would not be reasonable for the ice- harvester to interrupt the right of travel. On the other hand, if the ice- gatherer had appropriated and marked a field of ice. leaving room for travel. 352 WOODMAN v. PITMAN. [Maine, it would not be reasonable for the traveler to go upon the field and defile the ice; that both uses were lawful, but neither must exclude the other. And he further says: " Both cannot have the possession and use of the same ice for different purposes, although both have a common right to it so long as it re- mains unappropriated by either. The taker of water from a stream may not interfere with the navigation of it; but the harvester of ice obstructs the public highway at that place, so the one can no more take the whole ice, and destroy the public highway, than the other without legislative authority could divert the stream, and leave its bed dry and unnavigable. Courts may declare the relative rights of persons, but they cannot extinguish them. " In conclusion, the judge says that "the plaintiff's servant had no need to enter upon the defendant's ice-field, and he is chargeable with notice of the dangerous character of the spot; and for his imprudence in so doing, the plaintiff is not entitled to recover. " ICE RIGHT TO TRAVEL UPON. The right of the public to pass over the surface of navigable rivers when the latter are covered with ice does not seem to have been the subject of judicial investigation to any great extent, and no case is found where the questions arising in the principal case have been in conflict and before a court for determination. In French v. Camp, 36 Am. Dec. 728, defendant claimed the right to cut a hole in the ice on a road- way for the purpose of watering stock, but the court held that the publio have the right to travel on the ice on public rivers, and that any one who cuts a hole in the ice in or near the traveled way is liable for injuries to those passing over such way without fault on their part. And in State v. Wilson, 42 Me. 9, where the defendant erected a wharf on the shore of a navigable river, it was held that the use of the shore as a way of travel was a right pos- sessed by the public which the owner of the shore could not abridge; that when the river was covered by ice the right remained the same, and might be exercised at pleasure. In Massachusetts it is held that ponds containing more than ten acres are public property, and that all who own land adjoining them, or can gain access to them without becoming trespassers, have the right of travel thereon, so long as they do not interfere with their reasonable use by others or the public, except when the legislature has provided otherwise: Inhabitants of West Roxbury v. Stoddard, 7 Gush. 158. ID. RIGHT OF OWNERSHIP IN: Lorman v. Benson, 77 Am. Dec. 435; Wood v. Fowler, 40 Am. Rep. 330; Village of Brooklyn v. Smith, 44 Id. 90; Brook- ville etc. Co. v. Butler, 46 Id. 580, containing a discussion of many cases on the subject; People's Ice Co. v. Steamer Excelsior, 38 Id. 246, and note 255-260, treating the topic. The late case of Brastow v. Rockport Ice Co., 77 Me. 100, shows that the Massachusetts rule has been adopted in that state; such rule briefly stated is, that ponds containing ten or more acres are great ponds, and the right to cut ice upon them is a public right, free to all. That in this particular the right of the riparian owner is no greater than that of every other person who can reach the pond without becoming a trespasser upon the lands of others. In support of this rule, see Gage v. Steinlcrauss, 131 Mas. 222; Powell v. Doyle, 131 Id. 474. In those states where navigable rivers are held to be public property, the riparian proprietor has no title to the ice forming in such streams as an incident to his ownership of the bank, but the ice belongs to the first appropriator, such appropriation being affected by marking, surveying, and staking off the ice, and these acts give sufficient pos- aession to support trespass: Wood v. Fowler, supra; Hickey v. Hazard, 3 Mo. App. 480. On the other hand, where navigable fresh-water streams and ponds are not considered public property, but the bed of which belongs to Aug. 1887 ] AYEB v. WESTERN UNION TELEGRAPH Co 353 the riparian proprietor, the ice forming on the stream is his absolute prop- erty, and he may maintain trespass against one who cuts or removes it with- out license: Washington Ice Co. v. Shorta.ll, 101 111. 46; Brooklyn v. Smith, 44 Am. Rep. 90; Mill River Mfg. Co. v. Smith, 34 Conn. 462; Edgertonv. Huff", 26 In justified on the ground that the right of navigation required it, or that it - advantageous thereto: Washington Ice Co. v. Shortall, supra. ATEB v. WESTERN UNION TELEGRAPH COMPANY. [79 MAINE, 493. f OMISSION ov MATERIAL WORD IN TRANSMISSION OF TELEGRAPHIC MESSAGB raises a presumption, in the absence of proof to the contrary, that the mistake resulted from the fault of the telegraph company. STIPULATION IN TELEGRAPH BLANKS that the company shall not be liable for mistakes or delays in transmission, delivery, or non-delivery of unre- peated messages, whether happening by the negligence of its servants or otherwise, beyond the amount received for sending the message, ia void as against public policy. Aa BETWEEN SENDER AND INNOCENT RECEIVER OF TELEGRAM, the party who selects the telegraph as means of communication must bear any loss occasioned by errors in transmission on the part of the telegraph com- pany. But the sender can recover his loss from such company. AS BETWEEN SENDER AND RECEIVER OF TELEGRAM in which an erTOT U made by the telegraph company, the telegram received ia the original and best evidence of the contract binding on the sender. Wilson and Woodward, for the plaintiff. Baker, Baker, and Cornish, for the defendant. By Court, EMERY, J. On report. The defendant telegraph company was engaged in the business of transmitting messages by telegraph between Bangor and Philadelphia, and other points. The plaintiff, a lumber dealer in Bangor, delivered to the defendant company in Bangor, to be transmitted to his correspondent in Philadelphia, the following message: " Will sell 800 M laths, delivered at your wharf, two ten net cash. July shipment. Answer quick." The regular tariff rate was prepaid by the plaintiff for such transmission. The message delivered by the defendant company to the Philadelphia cor- respondent was as follows: "Will sell 800 M laths delivered at your wharf two net cash. July shipment. Answer quick." It will be seen that the important word " ten," in the state- ment of price, was omitted. The Philadelphia party immediately returned by telegraph AM. ST. RIP., VOL. I. 28 "354 AVER v. WESTERN UNION TELEGRAPH Co. [Maine, the following answer: "Accept your telegraphic offer on laths. Cannot increase price spruce." Letters afterward passed be- tween the parties, which disclosed the error in the transmission of the plaintiff's message. About two weeks after the discov- ery of the error, the plaintiff shipped the laths, as per the mes- sage received by his correspondent, to wit, at two dollars per M. He testified that his correspondent insisted he was entitled to the laths at that price, and they were shipped accordingly. The defendant telegraph company offered no evidence what- ever, and did not undertake to account for or explain the mis- take in the transmission of the message. The presumption therefore is, that the mistake resulted from the fault of the telegraph company. We cannot consider the possibility that it may have resulted from causes beyond the control of the company. In the absence of evidence on that point, we must assume that for such an error the company was in fault: Bart- lett v. Tel Co., 62 Me. 221; 16 Am. Rep. 437. The fault and consequent liability of the defendant company being thus established, the only remaining question is the extent of that liability in this case. The plaintiff claims it extends to the difference between the market price of the laths .and the price at which they were shipped. The defendant claims its liability is limited to the amount paid for the trans- mission of the message. It claims this limitation on two grounds: 1. The company relies upon a stipulation made by it with the plaintiff, as follows: "All messages taken by this company are subject to the following terms: to guard against mistakes or delays, the sender of a message should order it repeated; that is, telegraphed back to the originating office for compari- son. For this, one half the regular rate is charged in addi- tion. It is agreed between the sender of the following message and this company that the said company shall not be liable for mistakes or delays in the transmission, or delivery, or for non- delivery of any unrepeated message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same." This is the usual stipulation printed on telegraph blanks, and was known to the plaintiff, and was printed at the top of the paper upon which he wrote and signed his message. He did not ask to have the message repeated. Is such a stipulation in the contract of transmission valid Aug. 1887.] AYEB v. WESTERN UNION TELEGRAPH Co. 355 as a matter of contract assented to by the parties, or is it void as against public policy? We think it is void. Telegraph companies are quasi public servants. They re- ceive from the public valuable franchises. They owe the pub- lic care and diligence. Their business intimately concerns the public. Many and various interests are practically de- pendent upon it. Nearly all interests may be affected by it. Their negligence in it may often work irreparable mischief to individuals and communities. It is essential for the public good that their duty of using care and diligence be rigidly enforced. They should no more be allowed to effectually stipulate for exemption from this duty than should a carrier of passengers, or any other party engaged in a public business. This rule does not make telegraph companies insurers. It does not make them answer for errors not resulting from their negligence. It only requires the performance of their plain duty. It is no hardship upon them. They engage in the business voluntarily. They have the entire control of their servants and instruments. They invite the public to intrust messages to them for transmission. They may insist on their compensation in advance. Why, then, should they refuse to perform the common duty of care and diligence ? Why should they make conditions for such performance? Having taken the message and the pay, why should they not do all things (including the repeating) necessary for correct transmission? Why should they insist on special compensation for using any particular mode or instrumentality as a guard against their own negligence? It seems clear to us that, having undertaken the business, they ought without qualification to do it care- fully, or be responsible for their want of care. It is true, there are numerous cases in other states holding otherwise, but we think the doctrine above stated is the true one, and in harmony with the previous decisions of this court: True v. Tel. Co., 60 Me. 1; 11 Am. Rep. 156; Bartlett v. Tel. Co., 62 Me. 221; 16 Am. Rep. 437. 2. The defendant company also claims that the plaintiff was not, in fact, damaged to a greater extent than the price paid by him for the transmission. It contends that the plaintiff was not bound by the erroneous message delivered by the company to the Philadelphia party, and hence need not have shipped the laths at the lesser price. This raises the question whether the message written by the sender and intrusted to 356 AYER r. WESTERN UNION TELEGRAPH Co. [Maine, the telegraph company for transmission, ov the message writ- ten out and delivered by the company to the receiver at the other end of the line, as and for the message intended to be sent, is the better evidence of the rights of the receiver against the sender. The question is important, and not easy of solution. It would be hard that the negligence of the telegraph company, or an error in transmission resulting from uncontrollable causes, should impose upon the innocent sender of a message a liability he never authorized nor contemplated. It would be equally hard that the innocent receiver, acting in good faith upon the message as received by him, should, through such error, lose all claim upon the sender. If one, owning merchandise, write a message offering to sell at a certain price, it would seem unjust that the telegraph company could bind him to sell at a less price, by making that error in the trans- mission. On the other hand, the receiver of the offer may, in good faith, upon the strength of the telegram as received by him, have sold all the merchandise to arrive, perhaps at the same rate. It would seem unjust that he should have no claim for the merchandise. If an agent receive instructions by telegraph from his principal, and in good faith act upon them as expressed in the message delivered him by the com- pany, it would seem he ought to be held justified, though there were an error in the transmission. It is evident that in case of an error in the transmission of a telegram, either the sender or receiver must often suffer loss. As between the two, upon whom should the loss finally fall? We think the safer and more equitable rule, and the rule the public can most easily adapt itself to, is, that as between sender and receiver, the party who selects the telegraph as the means of communication shall bear the loss caused by the errors of the telegraph. The first proposer can select one of many modes of communication, both for the proposal and the answer. The receiver has no such choice, except as to his answer. If he cannot safely act upon the message he receives through the agency selected by the proposer, business must be seriously hampered and delayed. The use of the telegraph has become so general, and so many transactions are based on the words of the telegram received, any other rule would now be impracticable. Of course the rule above stated presupposes the innocence Auec. 1887.] AYER v. WESTERN UNION TELEGRAPH Co. 357 of the receiver, and that there is nothing to cause him to sus- pect an error. If there be anything in the message, or in the attendant circumstances, or in the prior dealings of the par- ties, or in anything else indicating a probable error in the transmission, good faith on the part of the receiver may re- quire him to investigate before acting. Neither does the rule include forged messages, for in such case the supposed sender did not make any use of the telegraph. The authorities are few and somewhat conflicting, but there are several in harmony with our conclusion upon this point. In Durkee v. Vermont C. R. R. Co., 29 Vt. 137, it was held that where the sender himself elected to communicate by telegraph, the message received by the other party is the original evi- dence of any contract. In Saveland v. Green, 40 Wis. 431, the message received from the telegraph company was admit- ted as the original and best evidence of a contract binding on the sender. In Morgan v. People, 59 111. 58, it was said that the telegram received was the original, and it was held that the sheriff receiving such a telegram from the judgment creditor was bound to follow it as it read. There are dicta to the same effect in Wilson v. M. & N. R'y Co., 31 Minn. 481, and Howley v. Whipple, 48 N. H. 488. , Telegraph Company v. Schotter, 71 Ga. 760, is almost a paral- lel case. The sender wrote his message: " Can deliver hundred turpentine at sixty-four." As received from the telegraph company it read: "Can deliver hundred turpentine at sixty," the word " four " being omitted. The receiver immediately telegraphed an acceptance. The sender shipped the turpen- tine, and drew for the price at sixty-four. The receiver refused to pay more than sixty. The sender accepted the sixty, and sued the telegraph company for the difference between sixty and the market. It was urged, as here, that the sender was not bound to accept the sixty, as that was not his offer. The court held, however, that there was a completed contract at sixty, that the sender must fulfill it, and could recover his consequent loss of the telegraph company. It follows that the plaintiff in this case is entitled to recover the difference between the two dollars and the market, as to laths. The evidence shows that the difference was ten cents per M. Judgment for plaintiff for eighty dollars, with interest from the date of the writ. 358 AYEB v. WESTERN UNION TELEGRAPH Co. [Maine. MISTAKE IN TRANSMISSION OF TELEGRAM is primafade e%'idence of negli- gence on the part of the company, and the burden of proof rests upon it to show itself free from fault: Western Union Tel. Co. v. Tyler, 24 Am. Rep. 279, and note 283; Telegraph Co. v. GrUwold, 41 Id. 500; and see New York etc. Tel Co. v. Dryburg, 78 Am. Dec. 338. CONDITION IN TELEGRAPH BLANK EXEMPTING COMPANY from liability for errors, legality of, and liability under: Western Union Tel. Co. v. Tyler, 24 Am. Rep. 279, and note 283; Becker v. Western Union Tel. Co., 38 Id. 366; Womack v. Western Union Tel Co., 44 Id. 614; Western Union Tel. Co. v. Blanchard, 46 Id. 480; Hart v. Western Union Tel. Co., 56 Id. 119; AUcen v. Western Union Tel. Co., 68 Id. 210; Wann v. Western Union Tel. Co., 90 Am. Deo. 396, and note 399; United States Tel. Co. v. Oildersleve, 96 Id. 519, note 628. CASES THB COUKT OF APPEALS MAKYLAND. GOMBS v. COMBS. [67 MARYLAND, U.J WORDS "DiE WITHOUT ISSUE OF HIS BOOT LAWFULLY BEGOTTEN," nf WILL, must be construed to mean a definite failure of issue, and will support a limitation over, if other words in the will do not prevent this result. DEVISE TO PERSON AND HEIRS OF HIS BODY LAWFULLY BEGOTTEN, WITH FULL POWER and authority to sell and convey the estate devised in his lifetime, or to dispose of it by last will and testament, gives to the devisee an absolute and unqualified fee which is not determinable on any event whatsoever, and a limitation over in such case is void, because it is inconsistent with the absolute property given to the devisee first named. EXECUTORY DEVISE MAY BE LIMITED AFTER FEE-SIMPLE; but in such case, the fee must be made determinable on some contingent event. It must be provided that the fee is to cease, and the executory devise to vest, on a contingency that must happen, if at all, within a life or lives in being, and twenty -one years and a fraction thereafter. EJECTMENT, brought by the plaintiffs below as heirs at law of George H. Combs, the son and devisee of Alexander Combs, deceased, against James N. Combs, to recover a tract of land claimed and held by the latter under a devise contained ia the will of the said Alexander Combs, which devise is quoted in the opinion of the court. The jury found for the plaintiffs, and the defendant appealed. Daniel R. Magruder, for the appellant. Robert C. Combs and Joseph F. Morgan, for the appellees. 859 360 COMBS v. COMBS. [Maryland, By Court, BRYAN, J. The mil of Alexander Combs con- tained the following clause: "I give and devise all my estate, real and personal, to my son, George H. Combs, to him and the heirs of his body lawfully begotten, with full power and authority to him, the said George H. Combs, to sell and con- vey the same in his lifetime, or to dispose of the same by last will and testament; but should he, the said George H. Combs, die without issue of his body lawfully begotten, and without having disposed of the same by sale, or by last will and testa- ment, either in whole or in part, then I give and devise my said estate, both real and personal, or the part remaining as above undisposed of, to my cousins, James Nathaniel Combs and Thomas B. Price, in equal portions, share and share alike, to them and their heirs." We are to decide whether the limitation to James N. Combs and Thomas B. Price is valid. By virtue of the act of 1862, chapter 161, the words of the will, "die without issue of his body lawfully begotten," must be construed to mean a definite fail- ure of issue, and will support the limitation over, if other words in the will do not prevent this result. The testator gives his estate to his son George, and the heirs of his body lawfully begotten, with full power and authority to sell and convey it in his life-time, or to dispose of it by last will and testament. It is difficult to see how the devisee could have more absolute control and dominion over the property. Even if there had been no words of inheritance, and the estate had merely been devised to George generally and indefinitely, the absolute power of disposition would have carried the fee: Benesch v. Clark, 49 Md. 497. An executory devise may be limited after a fee-simple; but in such case, the fee must be made <3eterminable on some contingent event. It must be provided that the fee is to cease, and the executory devise to vest, on a contingency, which must happen, if at all, within a life or lives in being, and twenty-one years and a fraction thereafter. In the case before us, the fee given to George is absolute and unqualified, and is not determinable on any event whatsoever. In Ide v. Ide, 5 Mass. 500, Chief Justice Parsons, in speaking of a similar case, said: "Whenever it is the clear intention of the testator that the devisee shall have an absolute property in the estate devised, a limitation over must be void, because it is inconsistent with the absolute property supposed in the first devisee. And a right in the first devisee to dispose of the estate devised at his pleasure, and not a mere power of Jan. 1887.] COMBS v. COMBS. 361 specifying who may take, amounts to an unqualified gift." And Chancellor Kent, in delivering the unanimous opinion of the court of errors in Jackson v. Robins, 16 Johns. 537, said: " We are obliged to say that an absolute ownership or capa- city to sell in the first taker, and a vested right by way of executory devise in another, which cannot be affected by such alienation, are perfectly incompatible estates, and repugnant to each other, and the latter is to be rejected as void." Both of these great jurists cited and relied upon Attorney- General v. Hall, Fitzg. 314, decided by Lord Chancellor King, assisted by the master of the rolls and Chief Baron Reynolds, and quoted with approval by Lord Hardwicke in Flanders v. Clark, 1 Ves. 9. These assuredly are authorities of great weight. We think that they ought to be considered as settling the law; although contrary opinions have been declared by some very learned courts. We agree with the circuit court in holding that the exec- utory devise is void, and that on the death of George Combs intestate, the land descended to his heirs at law. Judgment affirmed. CONSTRUCTION OF WORDS "DiE WITHOUT ISSUK ": See In Matter of New York etc. R'y Co., 59 Am. Rep. 478; Quackenbos v. Kingsland, 55 Id. /71, note 774, where this subject is discussed; Hill v. Hill, 15 Id. 545; Allender's Lessee T. Sussan, 3 Id. 171; Presley v. Davis, 62 Am. Dec. 396; Lewis v. ClaShorne, 26 Id. 270. WHEN DEVHEB TAKES FEE, REMAINDER OVER BEING VOID FOR REPUO- NANCY: See White v. Crenshaw, 60 Am. Rep. 370; Stowett v. Hastings, 69 Id. 748; Mitchell v. Morse, 52 Id. 781; Canedy v. Jones, 45 Id. 777; Henderson v. Blackburn, 44 Id. 780, note 783; Moore v. Sanders, 40 Id. 703; Bona v. Meier, 29 Id. 493; Jones v. Bacon, 28 Id. 1, note 4; McKenzie's Appeal, 19 Id. 525. But see Jones v. Jones, 57 Id. 266; Stuart v. Walker, 39 Id. 311, note 318; Reinders v. Koppelmann, 30 Id. 802; Burleigh v. Clough, 13 Id. 23. An estate vests absolutely in the first taker, when the gift is to him and his issue, or to him and the heirs of his body, and the limitation over is upon an indefinite failure of issue: Cleveland v. Havens, 78 Am. Dec. 90; or where the limita- tion over is too remote: Brattle Square Church v. Grant, 63 Id. 725, note 741, where other cases in that series are collected. A devise to one " in fee-sim- ple for life " passes an estate in fee: McAllister v. Tote, 73 Id. 119, note 121. In Texas, where an estate in lands is created by will, it will be deemed an estate in fee-simple, if a less estate is not limited by express words: Bell County v. Alexander, 73 Id. 268, note 276, collecting other cases. EXECUTORY DEVISE LIMITED AFTER FEE, WHEN VOID: See Van Home v. Campbell, 53 Am. Rep. 16C; Slaughter v. Slaughter, 79 Am. Dec. Ill, note 113, where other cases in that series are collected. A limitation by way of executory devise, which may not take effect within a term of a life or lives in being at the testator's death, and twenty-one years and nine months there- after, is void for remoteness: Brattle Square Church v. Grant, 63 Id. 725, note 740, where other cases are collected. 362 BALTIMORE ETC. R. R. Co. r. BOYD. [Maryland, BALTIMORE AND OHIO KAILROAD Co. v. BOYD. [67 MARYLAND, 32.1 PLAINTIFF IN TRESPASS QUAKE CLAUSUM FREGIT is NOT BOTTND TO GIVE AFFIRMATIVE PROOF that he has sustained any particular amount of damage. Every unauthorized entry upon the land of another is a tres- pass, which entitles the owner to a verdict for some damages, although they may, under some circumstances, be so small as to be merely nom- inal. WHERE PLAINTIFF'S LAND HAS BEEN CcrjrrrNTJOtrsrr AND BENEFICIALLY OCCUPIED BY RAILROAD COMPANY as the bed of its railroad tracks, he is entitled to a reasonable, but a substantial, compensation for such use, to be measured by what would be a fair rental value for the ground so oc- cupied during the time covered by the action, although he offers no evi- dence whatever of any special damages sustained by him, or that he waa hindered or obstructed in any proposed use of his land by reason of the presence and use of the railroad tracks. INSTRUCTIONS NOT SUFFICIENTLY DEFINITE, AND CALCULATED TO MISLEAD JURY, ought not to be given. JUDGE OF TRIAL COURT SHOULD INTERPOSE TO RESTRAIN EVERYTHINO TENDING TO MISLEAD JURY, and divert their minds from the strict line of inquiry with which they are charged. COUNSEL SHOULD NEVER BE PERMITTED TO ARGUE TO JURY AGAINST IN- STRUCTIONS of the court, nor to indulge in any line of argument or com- ment tending to induce them to disregard the instructions given for their government. IF INSTRUCTIONS TO JURY ARE AMBIGUOUS, AND COURT'S ATTENTION la CALLED TO FACT, it is its duty, at any stage of the trial before the jury have acted upon them, to remove the ambiguity, and make the meaning of the court plain. DECLARATIONS MADE BY COUNSEL WHILE ARGUING QUESTION OF DAM- AGES before a jury of condemnation of the property in question cannot be admitted in evidence in a subsequent action of trespass quare clausum fregit, for the purpose of showing malice on the part of the defendant, and thereby enhancing the damages. TRESPASS quare clausum fregit. The opinion states the case. Hugh L. Bond, Jr., and John K. Cowen, for the appellants. Charles J. Bonaparte, for the appellees. By Court, ALVEY, C. J. The record now before us contains four appeals, three by the defendant from three several judg- ments against it, and one by the plaintiffs from one of those judgments. There were three several actions of trespass quare clausum fregit brought by the plaintiffs below against the defendant, the Baltimore and Ohio Railroad Company, and by agreement the three actions were tried together, but a separate verdict Jan. 1887.] BALTIMORE ETC. R. R. Co. v. BOYD. 363 was rendered in each case, and consequently separate judg- ments were entered. The first of these cases was here on a former appeal, and is reported in 63 Md. 325. The facts of that case are substan- tially the facts of all the present cases, so far as the main ques- tion on these appeals is concerned; the only material difference being that the two last cases were brought to cover two suc- cessive periods of time. The locus in quo in all three of these actions is the same as that described in 63 Md. 330; and the circumstances of the entry upon and user thereof by the de- fendant are there fully stated. In that case, the court having determined that as the defendant's entry upon and user of that portion of the lot of vacant and unimproved ground in the city of Baltimore, belonging to the plaintiffs, occupied as a bed for the tracks of its railroad, was unauthorized and therefore a wrong, the plaintiffs were entitled to recover there- for. But in view of the facts then disclosed, this court held that the plaintiffs were not entitled to recover exemplary dam- ages, there being no element of fraud or malice, or evil intent, on the part of the defendant in entering upon and using the ground as it did. In the trial of the present cases, the main subject of contest was as to the proper measure of damages to be awarded to the plaintiffs. At the request of the plaintiffs, the court granted three prayers as instructions to the jury as to what damages should be allowed; and at the instance of the defendant, two other prayers were granted upon the same subject; but the first prayer offered by the defendant was refused by the court. The plaintiffs excepted to the instructions given on the request of the defendant, and the latter excepted to the instructions given at the instance of the plaintiffs, and also to the refusal to grant its first prayer. The rulings upon the prayers are the subjects of the third bill of exception taken by the defendant, and of the second bill of exception taken by the plaintiffs. By the first of the instructions for the plaintiffs, the jury were directed that, upon finding the facts enumerated, their verdict in the first case should be for the plaintiffs, " with such damages as would, in the judgment of the jury, amount to a fair compensation for the said unauthorized use of the said tracks." And as applicable to the second and third cases, the jury were directed that, in finding for the plaintiffs, their ver- dict should be for such an amount as would, " in their judg- ment, fully compensate the plaintiffs for such continued and 364 BALTIMORE ETC. R. R. Co. v. BOYP. [Maryland, unauthorized use of the said tracks between the dates named against the wishes of the plaintiffs, and under all the circum- stances disclosed by the evidence." By the first of the defendant's prayers, which was refused, the court was asked to instruct the jury that there was no evidence legally sufficient from which they could find that there was any substantial damage or injury done to the locus in quo, by the acts of the defendant, and therefore the verdict should be for nominal damages only. The court, however, while refusing to require the jury to find their verdict for nominal damages merely, did instruct them, by granting the second prayer of the defendant, that if they found from the evidence that no substantial damage or injury was done to the plaintiffs' lot of ground, by any act or user thereof by the defendant, the verdict should be for nominal damages only. We do not understand that there is any question made as to the propriety of granting the defendant's third prayer by the court. It clearly appears that since the death of Philip D. Boyd, in 1881, who held a life estate in the premises, the defendant in these cases has been, down to a very recent date, a tort- feasor, in the use and continual occupany of the locus in quo, as against the heirs at law of Mrs. Clarissa Boyd, deceased, those heirs being plaintiffs in the present actions. It is true, the original entry into, and the construction and use of rail- road tracks over, the locus in quo, were all supposed to be au- thorized by virtue of certain condemnation proceedings had under certain city ordinances for opening of streets, but which proceedings proved to be defective and insufficient to secure to the defendant the right of way over the lot of ground in question. The defendant, therefore, was not a willful wrong- doer. This was determined by this court in the case reported in 63 Md. 325. The lot of ground belonging to the plaintiffs was, and still remains, uninclosed, and without any improve- ment thereon whatever, apart from the railroad tracks placed there by the defendant. The space occupied by the road in passing through this lot was very small, being only about eighteen by thirty-six feet. The defendant, since the deci&ion of this case on the former appeal, has procured condemnation of the right of way for its road through the lot, and the in- quisition has been confirmed; but the present actions were brought for the repeated trespasses on the lot from the time of the death of Philip D. Boyd to the time of the taking of the recent inquisition by the defendant. Jan. 1887.] BALTIMORE ETC. R. R. Co. t;. BOYD. 365 That the entry upon and use of the land, though under color of right, and though the ground was uninclosed and vacant, was unlawful and therefore a trespass, admits of no question ot dispute; and consequently for such invasion of their rights the plaintiffs are entitled to recover some damages of the de- fendant. It is not necessary, in order to entitle the plaintiffs to a verdict, that they should have given affirmative proof that they had sustained any particular amount of damages; for every unauthorized entry upon the land of another is a tres- pass, and whether the owner suffer substantial injury or not, he at least sustains a legal injury, which entitles him to a verdict for some damages; though they may under some cir- cumstances be so small as to be merely nominal. Ashby v. White, 2 Ld. Rayrn. 955; Mellor v. Spateman, 1 Wms. Saund. r note 2, p. 346 a; Taylor v. Henniker, 12 Ad. & E. 488; Dixon v. Clow, 24 Wend. 188. The present cases, however, we think, are not cases for nominal damages merely. For though there is an entire absence of any such element of wanton or malicious motive, or such reckless disregard of the rights of others, in the com- mission of the trespass, and the repetitions thereof, as would entitle the plaintiffs to claim punitive or exemplary damages, yet the strip of ground belonging to the plaintiffs has been continuously and beneficially occupied by the defendant, as the bed of its railroad tracks, since the death of Philip D. Boyd to the time of bringing the last suit; and for such use of the land a reasonable, but a substantial, compensation ought to be paid. It is true, there is no evidence whatever of any special damages sustained, or that the plaintiffs were hindered or unobstructed in any proposed use of their lot, by reason of the presence and use of the railroad tracks; but nevertheless, we are of opinion that the plaintiffs are entitled to a reasonable compensation for the use of their land, and we think this is measured by what would be a fair rental value for the ground, occupied as it has been for the time cov- ered by the actions, and nothing more. In such cases as the present, where there is nothing to show that any special dam- age has been suffered, the principle seems to be established by many respectable authorities, that the plaintiff is entitled to recover such compensation as the use of the ground was worth during the time and for the purpose it was occupied. It has been so held in several cases, and we need only refer to McWillians v. Morgan, 75 111. 473; City of Chicago v. 366 BALTIMORE ETC. R. R. Co. v. BOYD. [Maryland, Huenerbein, 85 111. 594; 28 Am. Rep. 626; Ward v. Warner, 8 Mich. 508. And though the facts are somewhat different, the same principle of compensation was adopted in the cases of Blesch v. Chicago etc. Ry Co., 43 Wis. 183; Car v. Sheboy- gan etc.. R. R. Co., 46 Id. 625. Such, then, being the proper rule of damages in these cases, the instructions given at the request of the plaintiffs were not sufficiently definite, and were well calculated to mislead the jury. They were certainly susceptible of a construction that would permit the jury to transcend the fair rental value of the piece of ground occupied by the defendant, as the measure of compensation to be allowed; and that such was the understand- ing or interpretation of these instructions by the plaintifle' counsel is made manifest by the arguments and illustrations urged by him while addressing the jury, as reported and set out in the defendant's fourth and fifth bills of exception. We are therefore of opinion that there was error in granting these instructions in the terms therein employed; and that there was also error in granting the second prayer of the defendant, but no error in refusing the first, or in granting the third, of the defendant's prayers. In the view we have stated of the measure of recovery in these cases, the questions of evidence raised by the first and second bills of exception taken by the defendant become quite immaterial, and it is unnecessary to express any opinion in regard to them. With respect to the fourth and fifth exceptions taken by the defendant, they present a question of practice as to the right and duty of the trial judge to interpose to restrain counsel, who is alleged to be indulging in argument and illustration before the jury, unwarranted by the instructions of the court, and which will, if unrestrained, likely mislead the jury in the finding of their verdict. This is a matter that must, in the nature of things, rest largely in the discretion of the trial court. It is, however, proper for us to say that no duty in- cumbent upon the judge of a trial court is more imperative, nor more important to the fair and orderly administration of justice, than that of interposing to restrain everything in the course of the trial that tends to mislead the jury, and to divert their minds from the strict line of inquiry with which they are charged. It is the function and duty of the court, when called upon in the trial of civil cases by either of the parties, to in- struct the jury as to the principles of law applicable to the Jan. 1887.] BALTIMORE ETC. R. R. Co. v. BOYD. 367 jase on trial, and it is the duty of the jury to observe and con- form to such instruction. Counsel can never be permitted to argue to the jury against the instructions of the court, nor to indulge in any line of argument or comment that would tend to induce them to disregard the instructions given for their government. This is a matter that is always within the con- trol of the court: Sowerwein v. Jones, 7 Gill & J. 335; Bell v. v. State , 57 Md. 120. When, however, the instructions given are ambiguous, or susceptible of different interpretations, and the attention of the court is called thereto, no matter at what stage of the trial, if before the jury have acted thereon, it at once becomes the duty of the court to remove the ambiguity, and to make the meaning of the court plain. Here, as we have shown, the instructions were indefinite, and were, to some extent at least, open to the construction that was being placed thereon by the counsel of the plaintiffs when he was inter- rupted by the adverse counsel, and the court's attention called to what he was contending for before the jury, as set forth in the fifth exception. The counsel was not restricted in his con- tention by any affirmative action of the court; and we infer from such non-action that the counsel, in urging the allowance of a large and discretionary amount of damages, was, in the opinion of the court, conforming his contention to the instruc- tions given the jury. We have said that the instructions were erroneously granted; and whether or not they were rightly construed in argument before the jury is a question quite im- material to be decided for the retrial of the cases. There were two bills of exception taken by the plaintiffs. The first was taken to the refusal by the court to admit as evi- dence, to prove malice on the part of the defendant, certain declarations or statements made by counsel on a former occa- sion, in the course of a trial, and while arguing the question of damages before a jury of condemnation of the property in question. We know of no principle or authority, and have been referred to none, upon which such declarations of coun- sel as those here offered could be admitted for the purpose indicated. We therefore think the court was clearly right in excluding them. The second exception taken by the plaintiffs was to the granting by the court of the second and third prayers of the defendant. As to the second prayer, thus excepted to, we have said there was error; but as to the third, there was no DUDLEY v. HURST. [Maryland, error, and therefore no ground for tne exception to that in- struction. It follows that the several judgments entered in these cases must be reversed, and a new trial ordered. Judgments reversed, and new trial awarded. LAW PRESUMES DAMAGE FROM TRESPASS: See McCormel v. Kibbe, 85 Am. Dec. 265; Attioood v. Frkot, 76 Id. 567, note 571, where other cases in that aeries are collected. INSTRUCTIONS HAVING TENDENCY TO MISLEAD JURY SHOULD NOT BB GIVEN: See State v. BenJiam, 92 Am. Dec. 417; Southern R. R. Co. v. Ken- drick, 90 Id. 332, note 344, where other cases in that series are collected. DUTY OF COURT TO EXPLAIN INSTRUCTIONS: See Rosenbaum v. Weeden, 98 Am. Dec. 737, note 749; Ward v. Churn, 98 Id. 749, note 761; Peshine v. Shepperson, 94 Id. 468, note 477, where other cases in that series are col- lected. RIGHT AND DUTY OF COURT TO STOP 'IMPROPER COMMENTS OF COUNSEL AT TRIAL: See Martin v. State, 56 Am. Rep. 812, note 814, where this sub- ject is discussed; Toft v. Fislce, 54 Id. 459; CartwrigM v. State, 49 Id. 827; Cleveland Paper Co. v. Banks, 48 Id. 334, note 336, where this question is con- sidered; Union Central L. I. Co. v. Cheever, 38 Id. 573; Hatch v. State, 34 Id. 751; Coble v. Coble, 28 Id. 338; Brown v. Swineford, 28 Id. 582; note to State v. White, 27 Id. 142; Long v. State, 26 Id. 19; Commonwealth v. Scott, 25 Id 87; Ttitter v. Talbot, 76 Am. Dec. 695, note 698; Doster v. Brown, 71 Id. 153 St. Martin v. Desnoyer. 61 Id. 494. DUDLEY v. HURST. [67 MARYLAND, 44.1 EVEKYTHING REGARDED BY LAW AS FIXTURE, AS BETWEEN MORTGAGOR AND MORTGAGEE, ia sufficiently covered by a mortgage of a farm, "together with the buildings and improvements thereupon, and the rights, road- ways, waters, privileges, appurtenances, and advantages thereto belong- ing or in any wise appertaining. " MACHINERY USED IN CANNING BUSINESS is FIXTURE, and, as between the mortgagor and the mortgagee of the land upon which it is erected, will pass to the latter, where parts of it are attached to the soil and the other parts are necessary to the use of the parts so attached. WHERE PRINCIPAL PART OF MACHINERY BECOMES FIXTURE BY ACTUAL AN- NEXATION to the soil, such part of it as may not be so physically annexed, but which, if removed, would leave the principal part unfit for use, and would not of itself and standing alone be well adapted to general use elsewhere, is considered constructively annexed. INJUNCTION WILL BE GRANTED TO OWNER OF FARM HAVING ON IT LARGE CANNING FACTORY in full operation, with a large growing crop of corn to be canned, to prevent a threatened sale and removal of the canning machinery. March, 1887.] DUDLEY v. HURST. 369 INJURY 13 IRREPARABLE WHICH CANNOT BE MEASURJED by any known. pecuniary standard. ACTS AND DECLARATIONS or GRANTOR STTBSEQXTENT TO HIS DEED cannot be received in evidence to invalidate it. APPEAL. The opinion states the case. C. C. Magruder and Frank H. Stockett, for the appellants. William Stanley and Joseph K. Roberts, for the appellees. By Court, STONE, J. Thomas Clagett of Weston was the owner in fee of a large tract of land lying in Prince George's County, Maryland, containing about six hundred acres. Upon this farm he resided and had established a canning factory for the purpose of canning fruits, vegetables, and corn, princi- pally the latter. In July, 1883, he mortgaged this farm to William B. Bowie. This mortgage is not in the record, but we have been furnished with a certified copy taken by the proper officers from the records of Prince George's County. This mortgage, after describing and granting the land in the usual form, goes on to say: " Together with the buildings and improvements thereupon, and the rights, roads, ways, waters, privileges, appurtenances,, and advantages thereto belonging, or in any wise appertain- ing." This farm was sold under the mortgage and purchased by the complainants in April, 1885. They took possession of the farm and rented it for the residue of the year 1885, and their tenants continued the canning business. In March, 1885, the mortgagor, Clagett, executed a chattel mortgage of the machinery in the canning factory to the re- spondents, and in September, 1885, the respondents were about to sell the machinery under the power of sale contained in their mortgage, when the complainants obtained a preliminary injunction against such sale, upon the ground that the ma- chinery in the canning factory were fixtures, and passed to them under their mortgage of July, 1883. A good deal of testimony was then taken, and upon the final hearing the court below dissolved the injunction, and dismissed the bill, and the complainants appealed to this court. It will be seen from this brief statement of the case that the important question in the case is, whether the machinery in the canning factory passed to the complainants under tho mortgage of July, 1883, or in other words, whether such ma- AM. BT. RFP., VOL. I. 24 370 DUDLEY v. HURST. [Maryland, chinery, as between the mortgagor and mortgagee, were or were not fixtures. The learned judge who tried the case below did not decide that question, but dismissed the bill upon the ground that complainants had an adequate remedy at law, even if this machinery did belong to them. But if the machinery had really become, by annexation, actual or constructive, a part of the freehold, we entertain no doubt of the power of a court of equity to restrain and prevent its attempted severance. But if the machinery still retained its distinctive character as a personal chattel, it did not in fact belong to the complainants, but to the respondents, and then the complainants had no right to ask the interposition of a court of equity in their behalf, and the bill must be dis- missed. The character of the machinery is then the only question of importance in the case. A learned author of a work on fixtures (Ewell) Bays there is perhaps no other legal term which has been used in so many differing and often contradictory significations as the term " fixtures." The term " fixture " is generally used in reference to some originally personal chattel, which has been actually or constructively affixed either to the soil itself, or some struc- ture legally a part of such soil. The tests by which a fixture is determined are generally these: 1. Annexation to the realty, either actual or construc- tive; 2. Adaptation to the use of that part of the realty with which it is connected; 3. The intention of the party making the annexation to make the article a permanent accession to the freehold, this intention being inferred from the nature of the article annexed, the situation of the party making the an- nexation, the mode of annexation, and the purpose for which it was annexed: Ewell on Fixtures; Tyler on Fixtures; Jones on Mortgages. Of these tests the most important is the question of inten- tion. This is clearly shown by the fact that the law is very different between landlord and tenant and mortgagor and mortgagee, or what is the same, vendor and vendee; many things being held as fixtures between vendor and vendee which do not lose their character of personal chattels when the question is between landlord and tenant. This case is to be governed by the law as it exists between mortgagor and mortgagee, or vendor and vendee, and not as it is between landlord and tenant. March, 1887.] DUDLEY v. HURST. 371 We nave quoted a portion of tne mortgage under which the appellants claim, not for the purpose of showing that the ma- chinery in question was specifically included in its terms, but for the purpose of showing that nothing that was actually or constructively affixed to the freehold was excepted from its operation. The mortgage is broad enough, it will be seen, to cover everything that the law would, as between mortgagor and mortgagee, determine to be a fixture, and the question is resolved into whether this machinery is a " fixture." The business of canning is a comparatively new one, and the owner of this farm, Mr. Clagett, having commenced this business in 1882 as an experiment, and being satisfied with the results, determined to make it his permanent business. The main part of the machinery consisted of a boiler, which wa0 placed upon a brick foundation in a boiler-house built for that purpose. This building is attached to the main building both with mortices and spikes. In order to remove the boiler, which weighs about ten thousand pounds, it would be neces- sary to pull down the whole boiler-house, including the sills. There is connected with the boilers by steam-pipes a steam- pump fixed on a hard-wood foundation, strengthened by heavy timbers driven into the ground, and the foundation is spiked to these timbers. Running from the boiler is a large steam- pipe which is carried into the main building and made fast to the ceiling above; from this pipe there are several pipes which pass down the side of the house to the ground, and two feet below the floor. This piping connects with the kettles, scalder, etc., and furnish the steam for them. The kettles rest upon hard-wood foundations two feet under the floor; these are in the canning-house proper, as distinguished from the boiler- house. There are gasoline pots which are upon a stand with a brick and sheet-iron foundation under them, and are con- nected with a gasoline tank about thirty feet from the main building, which tank is in a house built for that purpose To remove the boiler and steam-pump, it would, as we have said, been necessary to tear down the boiler-house; and to re- move the process-kettles, it would be necessary to tear up the whole floor of the process-room, which is the main portion of the building. The removal would destroy the piping, which was cut to fit the house; even the kettles and tubs could not be removed through the doors, as they were put in before the building was completed. The building was constructed for canning purposes only, and when so constructed, and the ma- 372 DUDLEY v. HURST. [Maryland, chinery placed in it, the business was intended to be perma- nent. The farm itself furnished the main portion of the corn, fruits, and vegetables canned. That the machinery above described, and which constituted the motive power of the factory, is a fixture, and as between mortgagor and mortgagee passed to the latter, we think well settled. Chancellor Johnson, who seems to have favored the relaxation of the ancient rule as far as practicable, in Me Kim v. Mason, 3 Md. Ch. 186, decided that the motive power of a cotton-mill, consisting of boiler, engine, etc., passed to the mortgagee, even when they were placed upon the land after the mortgage was executed. In support of his position, the chancellor cites the cases of Winslow v. Merchants' Ins. Co., 4 Met. 306; 38 Am. Dec. 368; Powell v. Monson & B. M,, 3 Mason, 459; Farrar v. Staclcpole, 6 Greenl. 154; 19 Am. Dec. 201; Voor- hia v. Freeman, 2 Watts & S. 116; 37 Am. Dec. 490. In Kirwan v. Latour, 1 Har. & J. 289, 2 Am. Dec. 519, the matter in controversy was a distillery, and Chase, C. J., said: " The case of vendor and vendee is different from that of land- lord and tenant. In the latter case, the law allows the tenant to remove many things which may be considered as fixed. This is for the benefit of trade; and where a tenant puts up anything for the purpose of carrying on his trade, he may re- move it. The pumps, cisterns, iron grating and door, distill- ery, and house mills passed by this deed, but not the joists, vats, buckets, pickets, and faucets, which are not fixed to the freehold." Many other cases might be cited from other states showing that machinery located as that we have described passes to the mortgagee, but it is hardly necessary to cite them. But it seems to be intimated in Kirwan v. Latour, above cited, that although what was actually fastened to the soil passed by the deed, such parts of the distillery as were not so fixed did not so pass. This case was decided in 1802. But since the decision of that case, the doctrine of constructive an- nexation has been much discussed. From the general current of decisions, the following principle seems clearly deducible: That where, in the case of machinery, the principal part be- comes a fixture by actual annexation to the soil, such part of it as may be not so physically annexed, but which, if re- moved, would leave the principal thing unfit for use, and would not of itself, and standing alone, be well adapted for general use elsewhere, is considered constructively annexed. March, 1887.] DUDLEY v. HURST. 373 Thus the key of a lock, the sail of a wind-mill, the leather belting of a saw-mill, although actually severed from the prin- cipal thing, and stored elsewhere, pass by constructive annex- ation. They must be such as go to complete the machinery, which is affixed to the land, and which, if removed, would leave the principal thing incomplete and unfit for use: Beards- ley v. Ontario Bank, 31 Barb. 619, decided in 1859; Burnside v. Twitchell, 43 N. H. 390, decided in 1861. In this case there are some articles not actually annexed to the soil, such as crates, capping-machines, and work-tables, but are essentially necessary to the working of the principal machinery, and pass by constructive annexation. The main machinery would not be in working condition without them, and they are not adapted for general purposes. We are therefore of opinion that the whole machinery of the canning factory passed under the mortgage to Bowie, and consequently to his vendees under the mortgage sale. The remaining question in the case is one of jurisdiction, the learned judge below having dismissed the bill upon the ground that it did not disclose a case for the interposition of a court of equity. In this we think he was in error. Here was a large canning factory in full operation during the canning season, and with a large growing crop of corn to be canned. The season for canning is a short one, and re- quires many employees in the process, as well as in caring for and gathering the crops to be canned where they are raised upon the farm. To sell and remove the whole machinery in the midst of the short canning season would certainly involve the destruction of the property in the character in which it was then and had been for some years held and enjoyed. The canning-house would have been rendered useless, and the growing crop of corn comparatively worthless, the employees' discharge rendered necessary, and the ruin of the tenants car- rying on the factory probable. One of the grounds laid down by this court for the interpo- sition of a court of equity in Gilbert v. Arnold, 30 Md. 29, is where " the trespass goes to the destruction of the property in the character in which it has been held and enjoyed." That the facts stated, and the relief asked in the bill, fully come up to the standard of the destruction of the property in the char- acter in which it had been held and enjoyed, we think there can be no doubt. In Shipley v. Ritter, 7 Id. 408, 61 Am. Dec. 371, this court decided that a court of equity would step in and 374 DUDLEY v. HURST. [Maryland, prevent the destruction of fruit or ornamental trees, upon the ground that destruction presented a case of irremediable mis- chief going to the destruction of the estate in the character in which it had been enjoyed. " If," says Judge Story, " the trespass be fugitive, and tem- porary and adequate compensation can be obtained at law, there is no ground to justify the interposition of a court of equity. But if the acts done or threatened to be done to the property would be ruinous or irreparable, or would impair the just enjoyment of the property in future, if indeed the courts of equity did not interfere in cases of this sort, there would be great failure of justice in the country." In Scully v. Rose, 61 Md. 408, this court granted an injunc- tion to prevent digging ore from an ore bank, upon the ground that it was a permanent injury to the property. But there is, indeed, another aspect in which it may be viewed. Irreparable injury is one well-known ground for an injunction. An injury may be said to be irreparable when it cannot be measured by any known pecuniary standard. By what standard could a jury assess and determine the damage done to the true owner of the factory by the breaking up of his business at that critical period? Before he could be com- pensated, an estimate would have to be made of his outlay, the contracts upon which he was liable, and his prospective profits or losses. How much of this could legally be gone into in an action of replevin or trespass it is unnecessary to deter- mine. It is enough to say that under the circumstances of this case we see no adequate remedy at law. It is not necessary to refer to the exceptions to the evidence, further than to say that the acts and declarations of a gran- tor subsequent to the deed cannot be heard to invalidate his own deed. The decree will be reversed, and the case remanded, that the injunction may be made perpetual. As to Joseph K. Roberts, one of the respondents, the bill will be dismissed, as he appears only to have been acting as an attorney of respondents in conducting the sale. Decree reversed and case remanded. IRREPARABLE INJURY WITHIN MEANING OF LAW OP INJUNCTIONS. The term "irreparable " has acquired in the law of injunctions a meaning which ia not, perhaps, quite in keeping with the derivation of the word or its lit- eral signification. There are injuries incapable of being repaired which a court of equity does not regard as irreparable. And on the other hand, there March, 1887.] DUDLEY v. HURST. 375 are injuries that can be repaired, which it will, nevertheless, treat as irrep- arable, if the person inflicting or threatening them be insolvent or unable to respond in damages. The rule on this subject, deduced from the cases by Pearson, J., in Game v. Perkins, 3 Jones Eq. 177, 69 Am. Dec. 728, is thus elated: "The injury must be of a peculiar nature, so that compensation in money cannot atone for it. Where, from its nature, it may be thus atoned for, if in the particular case the party be insolvent, and on that account un- able to atone for it, it will be considered irreparable." This is as accurate a definition as any that has been given, and is probably as definite as any that can be framed. The question as to what is irreparable injury, such as to jus- tify a court o f equity in restraining a trespass, is considered at length in the note to Jerome v. Ross, 1 1 Am. Dec. 500 et seq. In the present note it is proposed to show, generally, what injuries are and what are not considered to be irreparable within the meaning of the law of injunctions. INJURY THAT CANNOT BE COMPENSATED BY DAMAGES in an action at law it irreparable. The best criterion for determining whether or not an injury is irreparable is this: Can complete compensation for it be had by a recovery of damages in an action at law? An injury which cannot be adequately compensated by a verdict for damages is generally regarded as irreparable. And an injury which can be fully compensated by damages at law is not irreparable: Cockey v. Carroll, 4 Md. Ch. 344; Varney v. Pope, 60 Me. 192; Whitfield v. Rogers, 26 Miss. 84; 59 Am. Dec. 244; Burgess v. Kattleman, 41 Mo. 480; Wason v. Sanborn, 45 N. H. 169; Mori-is Canal & R. Co. v. Central R. R. Co., 16 N. J. Eq. 419; Milhau v. Sliarp, 27 N. Y. 611; 84 Am. Dec. 314; Mechanics' etc. Bankv. Debolt, 1 Ohio 6t. 591; Wilson v. City of Mineral Point, 39 Wis. 160. INJURY WHICH CANNOT BE MEASURED BY ANY PECUNIARY STANDARD, or which it is impossible or hardly possible to measure, is regarded as irrepara- ble: Joyce on Doctrines and Principles of Injunctions, 218; London & N. W. R'y Co. v. Lancashire & Y. R'y Co., L. R. 4 Eq. Cas. 174; Commonwealth v, Pittsburgh etc. R. R. Co., 24 Pa. St. 159; 62 Am. Dec. 372; Piscataqua Bridge v. New Hampslure Bridge, 1 N. H. 35; Milhau v. Sharp, 27 N. Y. 611; 84 Am. Dec. 314; Burnley v. Cook, 13 Tex. 586; 65 Am. Dec. 79; Wilson v. City of Mineral Point, 39 Wis. 160; Manhattan Mfg. Co. v. New Jersey etc. Co., 23 N. J. Eq. 161. In the case of London P. R. R. Co., 8 Minn. 113; 83 Am. Dec. 770; Bassett v. Salisbury Mfj. Co., 47 N. H. 426; Quackenbush v. Van Riper, 2 Green's Ch. 350; 29 Am. Dec. 716; Thorn v. Sweeney, 12 Nev. 251; Hart v. Mayor etc. of Albany, 9 Wend. 671; 24 Am. Dec. 165; Ross v. Page, 6 Ohio St. 166; Mulvany v. Kennedy, 26 Pa. St. 44; Ridiardo's Appeal, 67 Id. 105; 98 Am. Dec. 202; Brown's Appeal, 62 Pa. St. 22; Clarl't Appeal, 62 Id. 447; Minniy'a Appeal, 82 Id. 373. The following injuries have been held not to be irreparable: Selling intoxi- cating liquors on land leased by the plaintiff: Brooks v. Diaz, 35 Ala. 599; throwing down fences and letting in cattle upon growing crops: Catching v. Terrell, 10 Ga. 576; temporarily interrupting the business of a city horse- railway company by moving a large house along the street over which such company had an exclusive right of way: Fort Clark If. R'y Co. v. Anderson, 108 111. 64; 48 Am. Rep. 645; using more of the water of a stream than the defendant was legally entitled to, thereby depriving the plaintiff of suffi- cient water to run his mill, and obliging him to shut down, thus throwing out of employment some two hundred persons: Westbrook Mfg Co, v. Warren, 378 DUDLEY v. HURST. [Maryland, 77 Me. 437; erecting a trestle-work upon which to run a railroad about six feet above the level of the land in front of the plaintiff's property: Schttr- mcier v. St. Paul