THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW A SELECTION OF CASES AND OTHER AUTHORITIES ox CIVIL PROCEDURE IN ACTIONS AT LAW BY AUSTIN WAKE^L\N SCOTT PROFESSOR OF LAW IN HARVARD UNIVERSITY CAMBRroCE HARVARD UNI\'ERSITY PRESS 1915 COPYRIGHT, 1015 BT AUSTIN WAKEMAX SCOTT 1915 * ^ PREFACE This collection of cases and other authorities is intended primarily for the use of students who are beginning the study of the law. About five years ago, when the editor began his work as a teacher of law in the Harvard Law School, he decided to enlarge the course on Pleading in that school into a course on Civil Procedure. It seemed that it would make the subject easier for the student to understand if he were shown how an action is carried through the courts, and if he were taught Pleading in its proper relation to the other steps in an action. In the selection and arrangement of the material, the editor has had in mind the needs of the first-year student who, though familiar in a general way with parts of the substantive law, has no knowledge of procedure except as he may have derived from the daily newspapers some notions of legal forensics. The cases cited in the footnotes are not for the most part merely cumulative. They are intended to suggest variations of the problems presented in the principal cases, and are adapted for use as hypothetical cases in the class-room. The names and arguments of counsel have been omitted. Other omissions are duly indicated. Austin Wakeman Scott. Law School of Harvard University, May, 1915. iii G'^HOO TABLE OF CONTENTS CHAPTER I PAGE Venue 1 CHAPTER II Process 14 Section I. Form of Process 14 Section II. Service of Process 17 A. As a Basis of Personal Judgment 17 B. In Proceedings in Rem and Quasi in Rem 42 Section III. Return of Process 51 CHAPTER III Appearance 57 CHAPTER IV Forms of Action 75 Section I. Actio)is at Common Law 75 Section II. ActioJis under. Modern Codes and Practice Acts 100 CHAPTER V Parties 112 Section I. Right to Sue and Liability to be Sv^d 112 Section 11. Joinder of Parties 122 A. Plaintiffs 122 B. Defendants 143 CHAPTER VI Pleading 171 Section I. Demurrers 171 Section II. Pleas or Answers 220 Section III. Recoupment, Set-off and Counterclaim 245 Section IV. Replies or Replications 253 Section V. Atnendments 258 Vi TABLE OF CONTENTS CHAPTER VII Trial 271 Section I. Trials at Xisi Prius and at Bar 271 Section II. Challenges 272 Section III. Right to Open and Close 290 Section IV. Demurrer to Evidence 29S Section V. Voluntary Xon^uit or Disco7\tinuance 307 Section VI. Compulsory Nonsuit or Dismissal and Directed Verdict 313 Section \'II. Argument and Conduct of Counsel 349 Section \TII. Instructions to the Jury 356 Section IX. Coi^duct and Deliberations of the Jury 379 Scrtinn X. Th( Verdict 401 CHAPTER Mil MoTio.v FOR New Tiual . . 439 CHAPTER IX Motions Based on the Pleadings 494 Section I. Motion in Arrest of Judgment 494 Section II. Motion for Judgment before or notwitlistanding the Verdict 515 CHAPTER X JtJDGMENTS 519 Section I. Form and Validity 519 Section II. Rendition arid Entry 535 Section III. Judgmerds by Default 540 Section I\'. Judgments by Confession 550 (•ii.\pti:h XI Proceedings l\ thl Trial Colrt .\itlr Judgment . . 550 CHAPTER XII lut 1 , .1 ■111- i.su.--, I <.^ Jri)(;MK\Ts 578 (■ii\i'ri:i{ Mil The ErTECT of a Judjjmkkt o.n Hudhequent Controversies Gil TABLE OF CASES PAGE Abbott V. Osgood 639 Ackcrson v. Erie Ry. Co. 1 Adams v. Hickman 572 Albrecht v. Long 604 Allis V. Leonard 359 Allured v. Voller 30 American Publishing Co. v. Fisher 401 Andrews i'. Blake 540 Atchison, etc., Ry. Co. v. Cogswell 475 Atkins V. Borstler 9 Auburn & Owasco Canal Co. v. Leitch 188 Avery v. Babcock 523 Ayer v. Austin 293 Ayres v. Coville 196 Bach V. Montana Lumber & Produce Co. 230 Bailey v. Wright 614 Baker v. Sherman 495 Bank of Genesee v. Spencer 585 Barber v. Vincent 183 Barclay v. Smith 627 Barnes i'. Quigley 101 Barrett v. Queen City Cycle Co. 575 Bates t'. Chicago, etc., Ry. Co. 44 Bayley v. Buckland 72 Bennett v. Preston 216 Berman v. Clark Co. 657 Berry t'. Dryden 319 Betts I'. Butler 524 Birmingham Iron Foundry v. Hatfield 11 Bishop V. Mugler 406 Blessing v. INIcLinden 148 Blevins v. Erwin Cotton Mills 280 Bond V. Spark 481 Booth V. Briscoe 132 Bothwell V. Boston Elevated Ry. Co. 341 Bray v. Raymond PAGE 137 Brigham v. Fayer^-eather 673 Broadstreet v. Clark 611 Brooke v. Brooke 192 Brower v. Smith 622 Brown v. Bartlett 556 BrowTi V. McLeish 534 Brown v. Paterson Parchment Paper Co. 462 Bruce v. Beall 504 Bruheim v. Stratton 105 Bruning v. Brotherhood Accident Co. 37 Brunsden v. Humphrey 645 Buck V. Little 534 Budding v. Murdock 259 Burgoyne v. Ohio Life, etc., Co. 143 Burnet v. Bisco 204 Butcher v. Metts 425 ,508 Cabanne v. Graf 24 Canfield v. Tobias 239 Casey Pure Milk Co. v. Booth Fisheries Co. 134 Central R. R. Co. ads. Van Horn 201 Central Transportation Co. v. Pullman's Car Co. 313 Centreville Nat. Bank v. Inman 573 Chaffee v. Rutland R. R. Co. 498 Chambers v. Lathrop ISO Chamblee v. Cole 561 Chapman v. McCormick 365 Cheatham v. Roberts 450 Chicago, etc., R. R. Co. v. Clausen 501 Chicago City Ry. Co. v. Mager 369 Church V. Grossman 621 City of New .Albany v. McCulloch 380 City of Peoria v. Simpson 160 Clark V. Oregon Short Line R. R Co. 330 Vlll TABLE OF CASES Clearwater Mercantile Co. t;. Roberts 34 Clough V. Goggins 185 Cloyd r. Trotter 49 Cobb Chocolate Co. t;. IvnudsoQ 352, 371 Cogan r. Ebden 414 Coles r. Soulsl)y 221 Collitis r. Whiteside 427 CoiniiKiiiwealth c. Barry 362 Coininonwoalth v. Tuey 375 Continental Nat. Bank v. Thurljer 31 Corl)ett V. Physicians' Casualty Ass'n 59 Coxr. High Point, etc., R.R. Co. 423 Coyne v. Lakeside Electric Ry. Co. 266 Cranston v. N. Y. Central, etc.. R. R. Co. 377 Craven v. Hanley 515 Crawford v. Beard 535 Creighton v. Kerr 66 Cromwell v. County of Sac 6.59 Cunningham i'. Magoun 458 Currier v. Inhabitants of Lowell 538 Dalrymple v. Williams 417 Dalton r. Favour 87 Diina r. Tucker 399 Darling f. New York, etc., R.R. Co 393 Davey r. City of Janesville 281 Dean v. Ross 5()5 De .\nnan v. Massey 42 D<' l\alb County v. Hixon 558 I> Ilutzen I'. Farr 454 Dftzur V. Stroh Brewing Co. 409 Dt- \'all V. De Vail 484 Di>M»H\vay 1'. E<1 wards 541 l)ix\n>- r. McMahan 223 D<»<-' I. Tyler 451 Dowagiiw! Mfg. Co. V. Schroeder 489 lX)yle I'. Ciore 668 Dull ('. IMacktuan 670 Dyer v. Union R. R. Co. 4r>r> Co. V. f Hover 543 1 < "oinnuHHioncnj of Burke County 282 PAGE Eaves v. Gamer 602 Edson ('. Dillaye 236 Eichlin i'. Holland Tramway Co. 173 Eikenberry it Co. v. Edwards 633 Elliot r. Woodhull 554 Everts, lit re 480 Ewing r. Goode 323 Farr r. Fuller 451 Felton c. Dickinson 84 First Nat. Bank r. St. Croix Boom Corp. 175 Fitzpatrick c. Gebhart 259 Fletcher v. London, etc., Ry. Co. 315 Fortescue c. Holt 229 Fox V. Smith 405 Fox V. Star Newspaper Co. 308 Freeman v. Creech 268 Freeman r. Hyett 248 Gagnon v. Dana 336 Galloway r. Bird 92 Galveston, etc., Ry. Co. v. Templeton 301 Gardner v. Buckbee 663 Gardner v. Picket 3.^7 Gardner v. Turner 273 Gazynski v. Colburn 120 Ghiradelli v. Greene ISO Gibney v. St. Louis Transit Co. 439 Gila Valley, etc., Ry. Co. v. Hall 473 Godfrej- r. Valentine 62 Gowan r. Fountain 587 Grosvenor v. Danforth 529 Guinnier t\ Village of Omro 6.')4 Gund it Co. /'. Horrigan 537 Haggard r. Hay's Adm'r 227 Haiton J'. JefTreys ls7 Hancock Nat. Bank r. Ellis 1S6 Harden i'. Atchison, etc., R. R. Co. 234 Hargis r. Morse r).S2 Harrington i'. Eureka Hill .Mining Co. 373 llarri.s r. .\very 219 HarriH v. Swan.son & Bro. 139 Hart V. Robrrtson 138 Hartford Hank v. Green 171 TABLE OF CASES IX PAGE Hastrop v. Hastings 245 Hawes v. Gust in 449 Hazel V. Jacobs 550 Hefner v. Fidler 85 Heney v. Chartered Co. of Lower Cal. 213 Henry de Bodreugam v. Thomas le Arcedekne 153 Herbert v. De Murias 262 Hess v. Great Northern Rj\ Co. 490 Hibshman v. Dulleban 666 Hodges V. Easton 430 Hoffmeier v. Trost 641 Hollis V. Richardson 506 Home Ins. Co. v. Gilman 124 Hopkins v. Ladd 546 Hopkins v. Railroad 304 Howard v. Jennison 256 Hudson V. Scottish Union & Nat. Ins. Co. 181 Huffstutler v. Louisville Packing Co. 310 Hufnagle v. Delaware & Hudson Co. 277 Humboldt Min. Co. v. American, etc., Co. 516 Hunt V. Loucks 590 Interior Construction, etc., Co. v. Gibney 69 Jenkins v. Steanka 225 Johnson v. Pensacola, etc., R. R. Co. 189 Jones V. Spencer 460 Judah V. Trustees of Vincennes Univ. 229 Keller v. Johnson 226 Kelley v. Bergen County Gas Co. 316 Kendall v. American Automatic Loom Co. 39 Kiff V. Old Colony, etc., Ry. Co. 615 Kindig v. March 554 Kitchenman v. Skeel 509 Klipstein v. Raschein 260 Knapp V. Walker 103 Knight V. Inhabitants of Freeport 388 Kramer v. Kister 409 PAGE Labahn Brick Co. v. Hecht .530 Lee V. Kjiapp 544 Lee V. Minneapolis, etc., Ry. Co. 210 Le Fanu v. Malcomson 130 Leggett V. Waller 630 Lester v. Stanley 379 Levitt V. O'Rourke Engineering Constr. Co. 226 Lienow v. Ritchie 89 Livingston v. Jefferson 3 Loan & Trust Sav. Bank v. Stoddard 215, 253 Lonzer v. Lehigh Valley R. R. Co. 331 Los Angeles County Bank v. Raynor 583 Louisville, etc., R. R. Co. v. Beasley 651 Lycoming Fire Ins. Co. v. Wright 193 Lydecker v. St. Paul City Ry. Co. 176 Lynch v. Freeland 528 Macurda v. Lewiston Journal Co. 203 Marriage v. Electric Coal Co. 354 Marsh v. Bulteel 194 Marshall- Wells Hardware Co. i'. Emde 222 Martin v. Southern Ry. 224 Mason v. Intercolonial Ry. 113 Mathews v. Converse 199 Matthews v. Delaware, etc., R. R. Co. 157 Matthews v. Tufts 21 McCall V. Price 145 McClure v. Logan 593 McDonald v. Metropolitan Street Ry. Co. 324 McKay i'. Darling 83 McMinn v. Hamilton 68 Mercer v. WTiall 290 MerrUl v. Perkins 261 Middleton v. Baker 298 Miedreich v. Lauenstein 51 Mitchell V. McNal^b 77 Mitchell V. Roberts 93 Mitchell V. Tarbutt 154 Montgomerj', Jones & Co. v. Liebenthal «S: Co. 27 Moore v. Hobbs 171 Morton v. Shaw 266 TABLE OF CASES MurchisoQ Nat. Bank v. Dunn Oil Mills Co. 278 M unlock V. Sumner 420 Murphy v. Bolgcr Bros. 96 Murphy v. Russell 517 Murray r. New York Life Ins. Co. 295 Myn r. Cole 233 Needham v. Thayer 17 Newell V. Aver 380 New York, etc., R. R. Co. v. Garrity 352 Nichols f. Hooper 47 Nichols V. Nichols 382 Obenchain v. Coraegj's 556 Oil Well Supply Co. v. Koen 643 Olsen V. Cloquet Lumber Co. 211 Orient Ins. Co. v. Northern Pac. Ry. Co. 238 O.xley V. Watts 91 Packard Maehinerj' Co. v. Laev 624 Page V. Wheeler 394 Parker v. Godin 479 Pearson t-. Nesbit 112 Pease r. Price 610 Pelican Ass. Co. v. American Feed, etc., Co. 494 Penhallow v. Dwight 603 Petric f. Hannay 422 Pharis v. Gere 5;i2 Phillips V. South Western Ry. Co. 467 Pickwood I'. Wright 529 Pontifcx V. Jolly 295 Porter's Lensee v. Cocke 597 Posnett V. Marble 512 PottJj V. Pciiiii Pleasant Land Co. 254 Powell V. Gott 563 Pracd V. Gruluun 465 Prowell V. Neuendorf 488 Quaglianu v. Jersey City, etc., Ky. Co. J I a Raj-mond SjTidicate v. Guttentag 107 Richanlson c. Weare Ristlon Iron, etc., Works r. Citizens' Traction Co. Riverside Land, etc., Co. r. Jensen Robinson v. Howard Rogers v. Cummings Russell V. Tomlinson Ryley i'. Parkhurst 435 617 669 650 577 156 200 40 136 Hn)urv, etc., 5.V.» 547 Sadler c. Boston, etc., Rubber Co. St. Louis A- S. F. R. Co. v. Webb St. Louis Car Co. v. Stillwater Street Ry. Co. 57 St. Paul T>T3othetae v. St. Paul Bookbinders' Union 116 Sanders v. Hamilton 643 San Diego Land, etc., Co. v. Neale 477 Savery v. Busick 456 Schlieht v. State 184 Schmidt v. Cliicago, etc., Ry. Co. 275 Scott V. Tubbs 389 Searle v. Roman Catholic Bishop 287 Sedgworth v. Overcnd 141 Shallcross i<. West Jersej', etc. R. R. Co. 242 Share v. Coats 334 Shaw V. Aveline 625 Sheldon v. Comstock 53 Sheldon i-. Root 619 Shinn v. Macpherson 612 Simmons v. United States 358 Skinner Mfg. Co. v. Wright 299 Slade's Case 457 Smith i'. Crichton 356 Smith V. Gibson 20 Smith /'. Summerfield 20S Snow V. Chat field '2M Sodousky v. McGee 31'J Sontum V. Mahoning, etc., Ry., etc., Co. 2(»5 Southern Hy. Co. v. Tyree 30;} Sparntw v. Bri)niage 4S2 Spciir r. ll!l^'g:l^ty 328 Spe;ir c. Spfiiccr 2S2 Spfiwer r. S(iit«' of New ^ Ork 339 Spencer v. Turney Hi Co. '2',i2 TABLE OF CASES XI PAGE PAGE Spencer v. Williams 412 Vaise v. Delaval 396 Stacy V. Kemp 245 Van Deusen v. Blum 79 Stampofski v. Steffens 441 Van Santwood v. Sandford 81 Starrett v. Gault 122 State V. Murphy 385 Walker v. Clements 249 Steamboat Pembinaw v. Wilson 115 Walker v. Jones 85 Steenerson v. Waterbury 242 Wall V. Chesapeake, etc., R. R. Stevens v. Helm 571 Co. 178 Streitweiser v. Lightboum 515 Waller v. Graves 444 Struebing v. Stevenson 372 Weeks v. Hart 404 Stuckey v. Fritsche 368 Weldon v. Neal 263 Sumner v. Tilcston 163 WTieelock v. Lee 71 Swett V. Southworth 228 WTiite V. Moquist 212 Swift V. Moseley 89 Wilbur V. Gilmore Wilder v. Bailey 648 621 Taylor v. Barnham & Co. 526 Willoughby v. Willoughby 127 Taylor v. Jones Templeton v. Wolf 530 308 Wilson V. Rybolt Wilson V. State 109 284 Thomas v. Chapman Thoreson v. Minneapolis Har- 391 Wise V. Darby Wood V. Faut 607 652 vester Works 657 Wood V. Gunston 464 Trotter v. Mut. Reserve Fund Woodward v. Dean 440 Life Ass'n 178 Wrege v. Jones 251 Trow V. Village of ^^^lite Bear Trullinger v. Webb 471 276 Wright V. Abbott Wright V. Southern Ry. York V. Texas Co. 397 329 64 United States v. Mayer 565 Young V. Central R. R. Co. 340 CASES OX CIVIL PROCEDURE. CHAPTER I. VENUE. ACKERSON V. ERIE RAILWAY COMPANY. Supreme Court of New Jersey. 1865. [Reported 31 New Jersey Law, 309.] The Chief Justice (Beasley).^ This suit is in tort for an injury- happening to the plaintiff from the carelessness of the defendants, while a passenger in their railroad cars. The declaration is in the usual form, and it has been answered by a demurrer. The point of this issue upon which a decision is sought is, whether the plain- tiff, as he shows in his declaration, that the injuries received by him occurred in New York on the railroad of the defendants there situate, can sue on such cause of action in this state ? As long ago as 1665, it was certified by the twelve judges, that for torts to the person and to personal property done out of the realm, a remedy lay in a suit, in personam, in England; but that for torts to real property situate abroad, no suit would lie. Cited in Mostyn v. Fabrigas, Cowp. R. 180. A few j-ears later it was decided in affirmance of this doctrine in the case of Rafael v. Verelst, 2 Wm. Black. 1055, that an action for an alleged unla\^-ful imprison- ment of the defendant in India was well brought, the court saying, in reply to the objection of want of jurisdiction, that " personal injuries are of a transitory nature and sequuntur Forum Rei^ From the time of these decisions to the present, it is beUeved that the doctrine thus enunciated has never been called in question by any English judge. Nor does the rule of the common law differ in this respect, ^ath that which is enforced in the law of nations. It is, in the interna- tional code, the well established doctrine, that every nation may * The statement of facts and the concurring opinion of Haines, J., are omitted. — Ed. 1 Z VENUE rightfully exercise jurisdiction over all persons wnthin its domains, with regard to matters purely personal; and .Uulge Stor}^ remarks that, in England and America, " suits are maintainable and are constantly maintained between foreigners, where either of them is within the territory of the state in which the suit is brought." Conflt. of Laws, § 542. The same view of the law received judicial sanction in the fol- lowing cases. Glen v. Hodges, 9 Johns. 67; Gardiner v. Thomas, 14 Johns. 134; Flower y. Allen, 5 Cow. 654; Smith r Bull, 17 Wend. 324; Barrell v. Benjamin, 15 Mass. 354. And in this state, it is believed, the practice has accorded with the doctrine illustrated by the cases above cited. If the point had been considered as at all in doubt, it is highly improbable that it would have escaped the attention of the experienced counsel who acted for the defence, in the important case of The American Print Works v. LawTence, 1 Zab. 248. The plaintiff is entitled to judgment on this demurrer.^ ' Tho result is the same where the cause of action is statutory. Dennick V. Railroad Co., 103 U. S. 11, 26 L. ed. 439; Texa.s & Pacific Ry. Co. v. Cox, 145 U. S. 593, 36 L. ed. 829, 12 S. Ct. 905; Burns v. G. R. & I. R. R. Co., 113 Ind. 109, 15 N. E. 230; Higgins v. Central, etc., R. R. Co., 155 Mass. 176, 29 N. E. 534; McLeod v. Conn. & Pass. R. R. R. Co., 58 Vt. 727, 6 Atl. 648; Nelson V. C. & O. R. R. Co., 88 Va. 971, 14 S. E. 838. But compare Mexican National Ry. Co. v. Jackson, 89 Tex. 107, 33 S. W. 857, 31 L. R. A. 276; De Herrcra v. Texas, Mexican Ry. Co. (Tex. Civ. App., 1913), 154 S. W. 594. The mere fact that one party is a non-resident indiviiiual or corporation, or that both parties are non-resident individuai-s or corporations, does not pre- clude a recover>'. Rafael v. Verelst, 2 Wrn. Bl. 1055; Reeves r. Soutiiern Ry. Co., 121 Ga. 501, 49 S. E. 074, 70 L. R. A. 513; Rice v. Brown, 81 Me. 56, 16 \tl. 334; Peabfxiy v. Hamilton, 106 Mius.s. 217; Pullman Palace Car Co. v. LawTence, 74 Miss. 782, 22 So. 53; Wertheim v. Clergue, 53 N. Y. App. Div. 122, 6.5 N. Y. Supp. 750. But see Matthaei v. Galitzin, L. R. 18 Eq. 340; Gardner v. Thomas, 14 Johns. (N. Y.), 134; Anglo-.Vmerican Provision Co. v. DaviH Provi.sion Co., 169 N. Y. .506, 62 N. E. 587, 88 Am. St . Rep. OOS, affirmeii llic quofition how far they will attempt to regulate the internal affairs of a foreiKU corjxjration, Ht?o Beulc, Foreign Corporationw, Chaj). Xlll. — 1j>. LIVINGSTON V. JEFFERSON LIVINGSTON V. JEFFERSON. Circuit Court of the United States, District of Virginia. 1811. [Reported 1 Brockenbrough, 203.]^ This was an action of trespass, brought in the circuit court of the United States, for the district of Virginia, by Edward Living- ston, a citizen of the state of New York, against Thomas Jefferson, a citizen of the state of Virginia, and late President of the United States. . . . The declaration contained eight counts. The first count charged, that the defendant, on the 25th day of January, 1808, at the city of New-Orleans, in the district of Orleans, to wit, at Rich- mond, in the county of Henrico, and district of Virginia, with force and arms, broke and entered a certain close of the plaintiff. The defendant pleaded to the jurisdiction of the court that the said close was situated in the territory of Orleans and outside the district of Virginia. The plaintiff replied that the defendant was not a resident of the territory of Orleans and was not amenable to the jurisdiction of the courts of that territory. To this repUca- tion the defendant demurred generally, and the plaintiff joined in demurrer.* Marshall, C. J. — The sole question in this case is: — Can this Court take cognizance of a trespass committed on lands Ijang within the United States and without the Commonwealth of Vir- ginia, in a case where the trespasser is a resident of, and is found within, the district ? I concur with my brother judge in the opin- ion, that it cannot. I regret, that the inconvenience to which delay might expose at least one of the parties, together with the situation of the Court, will not admit of my bestowing on this question, that deliberate consideration which the very able discussion it has received at the bar would seem to require; but I have purposely avoided any in- vestigation of the subject previous to the argument, and must now content myself with a brief statement of the opinion I have formed, and a sketch of the course of reasoning which has led to it. This doctrine of actions, local and transitory, has been traced up to its origin in the common law, and, as has been truly stated on 1 Reported also Fed. Cas. No. 8411. — Ed. * The statement of facts is abridged. — Ed. 4 VEXUE both sides, it appears, that, originally, all actions were local; that is, that according to the principles of the conmion law, every fact must be tried by a jur>' of the vicinage. The plain consequence of this principle was, that those courts only could take jurisdiction of a case who were capable of tlirccting such a jury as must tr}' the material facts on which their judgment would depend. The juris- diction of the courts, therefore, necessarily became local wnth re- spect to every species of action. But the superior courts of England having power to direct a jury to every part of the kingdom, their jurisdiction could be re- strained by this principle, only to cases arising on transactions which occurred within the realm. Being able to direct a jury either to Surrey or MidtUesex. the necessity of averring in the declaration, that the cause of action arose either in Surre}- or Mid- dlesex, could not be produced in order to give the court jurisdiction, but to furnish a venue. For the purpose of jurisdiction, it would, unquestionably, be sufficient to aver, that the transaction, out of which the cause of action arose, occurred within the realm. This, however, being, not a statutory regulation, but a principle of unwritten law, which is really human reason applied by courts, not capriciously, but in a regular train of decisions, to human affairs, for the promotion of the ends of justice; according to the circumstances of the nation, the necessity of the times, and the general state of things, was thought susceptible of modification; and judges have modified it. They have not changed the old prin- ciple as to form. It is still necessary to give a venue, and where the contract exhibits on its face evidence of the place where it was made, the party is allowed to aver that such place is in any county in England. This is known to be a fiction. Like an ejectment, it is the creat- ure of the c(Mirts, and is mouldecl to the purposes of justice, accord- ing to the views whidi its inventors have taken of its capacity to effect those purposes. It is not, however of undefmable extent. It luus not absolutely prostrated all distinctions of place, but has ce etjsential to the merits of the cau.se. It is always LIVINGSTON V. JEFFERSON 5 traversable for the purpose of contesting a jurisdiction not intended to be protected by the fiction. In the case at bar, it is traversed for that purpose; and the question is, whether tiiis is a case in which such traverse is sustain- able ? or, in other words, whether the courts have so far extended their fiction, as, by its aid, to take cognizance of actions of trespass on lands not lying within those limits which bound their process ? They have, without legislative aid, applied this fiction to all personal torts, wherever the wrong may have been committed, and to all contracts, wherever executed. To this general rule, con- tracts respecting lands form no exception. It is admitted, that on a contract respecting lands, an action is sustainable wherever the defendant may be found. Yet in such a case, every difficulty may occur that presents itself in an action of trespass. An inves- tigation of title may become necessary, a question of boundary may arise, and a survey may be essential to the full merits of the cause. Yet these difficulties have not prevailed against the jurisdiction of the court. They are countervailed, and more than countervailed, by the opposing consideration, that if the action be disallowed, the injured party may have a clear right without a remedy, in a case where a person who has done the wrong, and who ought to make the compensation, is within the power of the court. That this consideration should lose its influence where the action pursues a thing not in the reach of the court, is of inevitable neces- sity; but for the loss of its influence where the remedy is against the person, and is within the power of the court, I have not yet discerned a reason, other than a technical one, which can satisfy my judgment. If, however, this technical reason is firmly established, if all other judges respect it, I cannot venture to disregard it. The distinction taken is, that actions are deemed transitory, where the transactions on which they are founded, might have taken place any where; but are local, where their cause is in its nature, necessarily local. If this distinction is estabhshed; if judges have determined to carry their innovation on the old rule no further; if, under circum- stances which have not changed, they have determined this to be the limit of their fiction, for a long course of time, it would require a hardihood, which, sitting in this place, I cannot venture on, to pass this limit. This distinction has been repeatedly taken in the books, and is recognized by the best elementary writers, especially by Judge 6 VENUE Blackstone, from whose authority no man will lightly dissent. He expressly classes an action of trespass on lands, with those actions which demand their possession, and which are local; and makes those actions, only, transitory, that are brought on occur- rences, which might happen an}' where. From the cases that support this distinction, no exception, I believe, is to be found among those that have been decided in Court on solemn argument. Une of the greatest judges who ever sat upon any bench, and who has done more than any other, to remove those technical impediments which grew out of a different state of society, and too long continued to ol)struct the course of substantial justice, was so struck with the weakness of the distinction between taking juris- diction in cases of contracts respecting lands, and of torts com- mitted on the same lands, that he attempted to abolish it. In the case of Mostyn v. Fabrigas, 1 Cowper, 161, Lord Mansfield stated the true distinction to be, between proceedings which are in rem, in which the effect of the judgment cannot be had, unless the thing lay within the reach of the court, and proceedings against the person, where damages only are demanded. But this opinion was given in an action for a personal wrong, which is admitted to be transitory. It has not, therefore, the authority to which it would be entitled, had this distinction been laid down in an action deemed local, and may be termed an obiter dictufu. He recites, in that opinion, two cases decided by himself, in which an action was sus- tained for trespass on lands lying in the foreign dominions of his Britannic Majesty. But both those decisions were at nisi prius, and though the overbearing influence of Lord Mansfield might have sustained them on a motion for a new trial, that motion never was made, and the principle did not obtain the sanction of the court. In a subsequent case reported in 4th Durnford and East, p. ryO'.i, [Doiilson v. Matthews] (17*.)2), these decisions are expressly referred to and overruled, and the old distinction is affirmed. It has been said that the decisions of British courts made since the Rev(jluti(jn, are not autlujrity in this country. I admit it. But they are entitled to that respect which is due to the opinions of wi.se men, who have maturely studied the subject they decide. Had th(! regular course of decisions, previous to the Revolution, been against the distinction now asserted, and had the old rule J)Opn ovj-rthrown by adjudications made Hubsetiuent to that ^r.'l•ni, this Court niight have; felt itself bound to disregard them; but where i\u'. distitiction is of ancient date, luis been long j)re- scTved, and a modern attempt to overrule it has itself been over- LIVINGSTON V. JEFFERSON 7 ruled since the Revolution, I can consider the last adjudication in no other light than as the true declaration of the ancient rule. According to the common law of England, then, the distinction taken by the defendants, between actions local and transitory, is the true distinction, and the action of trespass, qiuire clausum fregit, is a local action. This common law has been adopted by the legislature of Vir- ginia. Had it not been adopted, I should have thought it in force. When our ancestors migrated to America, they brought wdth them the common law of their native country, so far as it was applicable to their new situation, and I do not conceive that the Revolution, would, in any degree, have changed the relations of man to man, or the law which regulated those relations. In breaking off our poUtical connexion with the parent state, we did not break off our connexion with each other. It remained subject to the ancient rules, until those rules should be altered by the competent authority. But it has been said, that this rule of the common law is, im- pliedly, changed by the act of assembly, which directs that a jury shall be summoned from the by-standers. Were I to discuss the effects of this act in the courts of the state, the inquiry, whether the fiction already noticed, was not equiva- lent to it in giving jurisdiction, would present itself. There are, also, other regulations, as that the jurors should be citizens, which would deserve to be taken into view. But I postpone these con- siderations, because I am decidedly of opinion, that the jurisdiction of the courts of the United States depends, exclusively, on the Con- stitution and laws of the United States. In considering the jurisdiction of the circuit courts, as defined in the judicial act, and in the Constitution, which that act carries into execution, it is worthy of observation, that the jurisdiction of the court depends on the character of the parties, and that only the court of that district in which the defendant resides, or is found, can take jurisdiction of the cause. In a court so constituted, the argument drawn from the total failure of justice, should a trespasser be declared to be only amenable to the court of that district in which the land lies, and in which he will never be found, appeared to me to be entitled to peculiar weight. But according to the course of the common law, the process of the court must be exe- cuted, in order to give it the right to try the cause, and, conse- quently, the same defect of justice might occur. Other judges have felt the weight of this argument, and have struggled ineflfec- $ \t:nue tually against the distinction which produces the inconvenience of a ck'iir right without a remedy. 1 must submit to it. The law, upon the demurrer, is in favour of the defendant.' * In the following cases in which the cause of action arose outside the juris- diction where the suit was brought, the plaintiff was prechided from recovering, on the ground tliat the action was local. British South Africa Co. r. Conipan- hia de MtHjainbique, (Ls93) A. C. 002 (trcspiLss to land); Chirk v. Scudder, 6 Gray (Mass.), 122 (action on a covenant running with the land brought by an assignee of the covenantee); Reams v. Sincbir, 88 Neb. 738, 130 N. W. 662 (partition procinxlings) ; White i'. Sanborn, 6 N. II. 220 (action on a covenant running with the land brought by an assignee of the covenantee); Karrt;. New York Jewell Filtration Co., 78 N. J. L. 19S, 73 Atl. 132 (excavation causing subsidence of adjoining land); Am. U. T. Co. v. Middleton, 80 N. Y. 408 (cutting timber when one inseparable trespass); Brisbane v. P. H. H. Co., 205 N. Y. 431, 98 N. E. 752, 44 L. K. A. (x.s.), 274 (negUgcntly setting fire resulting in di-struction of trees). In the following cases, on the other hand, the plaintiff recovered, because the action was held to be transitory. Hodges v. Hunter Co., 61 Fla. 280, 54 So. 811, 34 L. II. A. (.N.s), 994 (conversion of timber); Campbell v. W. M. Ritter Lumber Co., 140 Ky. 312, 131 S. W. 20, 140 Am. St. Rep. 385 (action brought by lesstjr against lessee for waste); Little v. Chicago, etc., Ry. Co., 65 Minn. 4S,67 N.\V.84t3,60 Am.St. Rep. 421, 33 L. R. A. 423 (negligently setting fire resulting in injurj' to land; rejecting the whole doctrine of Living- ston V. Jefferson; see Peyton v. Desmond, 129 Fed. 1, 63 C. C. A. 651); Phelps t'. Decker, 10 Mass. 267 (action brought by covenantee on covenant in a deed conveying land); Corporation of N. Y. v. Dawson, 2 Johns. Cas. (N. v.), 3.35 (use and occupation); Jackson v. Hanna, 53 N. C. 188 (action brought by covenantee on covenant in a deed conveying land); Brady v. Brady, 161 N. C. 324, 77 S. E. 235, 44 L. R. A. (n.s.), 279 (proceeds of the sale of timb«T wrongfully cut) ; Henwootl v. Checseman, 3 Serg. 50. — Eu. ATKINS V. BORSTLER 9 ATKINS V. BORSTLER et al. Supreme Court of Michigan. 1881. [Reported 46 Michigan, 552.] Campbell, J.^ Plaintiff who resides in Mecosta county, sued defendants, who reside in another State, on contract, the suit being brought in Kent county and service made there. Defendants pleaded in abatement showing their non-residence and that of plaintiff, and claiming that under our statutes they could only be sued in Mecosta. On demurrer this plea was sustained, and plain- tiff brings error. It was held in Haywood v. Johnson, 41 Mich. 598, that a resident of the State could not be sued in a transitory action in a county where neither party resided. It was held in Turrill v. Walker, 4 Mich. 177, that the circuit courts could get no jurisdiction unless one defendant is served in the county. It results from these decisions that a suit in Mecosta would have been fruitless unless a defendant should be found there, and that unless a suit can be brought where a non-resident defendant is found, he cannot be sued at all, in many cases, and could not have been in this case. Reliance is had by defendants on section 5970 of the Compiled Laws of 1871, which requires transitory actions to be tried in the county *' where one of the parties shall reside at the time of com- mencing such action." This was held in Haywood v. Johnson, to require suits to be commenced in such county. And if the sec- tion applies to non-residents of the State, the decision below was correct. But if correct it follows that there are many transitory actions on contract, as well as in tort, where such persons can al- ways evade the justice of this State by keeping away from counties where their creditors reside. The Constitution gives jurisdiction without any exception, in such cases, to the circuit courts. It would not be competent for the Legislature to take it away. And if the statute in question would have any such effect according to its ordinary meaning we are compelled to choose between holding it to that extent void, or construing it according to what was no doubt its real intent, as not applicable here. We have no doubt the section in question was intended to be a beneficial section in the direction of saving defendants from vexa- tious suits in places remote from their homes. It accordingly * The statement of facts is omitted. — Ed. 10 VENUE saved them the privilege of being sued at home, or in the home county of the plaintiff, who was regarded as entitled also to some consideration. It is evident that in so legislating the law-makers had no idea of granting a privilege to non-residents against being sued at all. The natural inference is that those who were entitled to be sued in the forum of their residence, are persons whose resi- dence contains one of the courts of the State; so that suits may be brought untK-r our laws. The language of the statute only applies to trials of actions brought under our laws; and if any case arises under our laws it would be absurd to hold that the Legislature meant to say it should not be tried at all. Those who claim the privilege must point out a Michigan forum where they can be found for service of process. The statute ajiplies to no others. This ha^ been the uniform practical construction, and this is the first case brought to our notice, in which anj' non-resitlent defend- ant has claimed exemption from process. This practical construc- tion of nearly forty 3'ears cannot be disregarded. We think that the case is not within the statute, and that service on the defend- ants in any county of this State is valid when suit was commenced in that county. Judgment must be reversed with costs of both courts and the demurrer sustained, with leave to defendants to answer over and plead issuably in twenty days. The other Justices concurred.' ' In the case of antion.s ari.sinp within the state the common law distinction betwM-n l<»c;il and transitory actions was early rejected in S(jnu' jurisdictions as a n-sult of construction of statutory or constitutional provisions. Genin v. Grier, 10 Oh. 2(W. 'rh(? hiw an to the venue or i)lace of trial when the cause of action luus arisen within the state in now largely regulated by express statutory provisions in the w'VcTal states. These statutes fix the venue in some cases at the situs of the subject of the action, in others at the place where the cause of action arose, in oth'-rs at the residence of a i)arty. In C!ises wln-re the venue defx-nds u[)on the residence of the parties, the statut*-** Renerally make exjjress j)riivision for cjuses where, as in the principal ciu»', the defendttnt is u non-resident. See the statutes of tin; several states and 40 ("yc. I(r2. The New York Oxle (tf I*roc(r the place of trial of civil actions: — • " 8«!C. 123. Actions for the following causes, must bo trie*! in the county in which the subject of the action or nunw part thereof is situated, subject to the {H)wer of th»! court to changt; tlu; place of trial, in the cases provided by statute. " 1. For the reojvery of real j>roperty or of an estate or interest tlieniii, or BIRMINGHAM IRON FOUNDRY V. HATFIELD 11 BIRMINGHAM IRON FOUNDRY v. HATFIELD. Court of Appeals of New York. 1870. [Reported 43 New York, 224.] Appeal from the judgment of the General Term of the Supreme Court in the second judicial district, affirming the judgment of the Special Term. This is an action brought for the foreclosure of a mortgage made and delivered to the plaintiff by the defendants, John W. Hatfield and wife. The venue was laid in Queens county, and the case was on the calendar in that county in October, 1867. The court, for its own for the determination, in any form, of such right or interest, and for injuries to real property: "2. For the partition of real property: " 3. For the foreclosure of a mortgage of real property: " 4. For the recovery of personal property, distrained for any cause. " Sec. 124. Actions for the following causes, must be tried in the county where the cause or some part thereof arose, subject to the hke power of the court, to change the place of trial in the cases provided by statute: " 1 . For the recovery of a penalty or forfeiture imposed by statute; except, that when it is imposed for an offence committed on a lake, river, or other stream of water, situated in two or more coimties, the action may be brought in any county bordering on such lake, river or stream, and opposite to the place where the offence was committed : " 2. Against a pubhc officer or person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a person, who by his command or in his aid, shall do anything touching the duties of such officer. " Sec. 125. In all other cases, the action shall be tried in the county in which the parties or any of them shall reside at the commencement of the action ; or if none of the parties shall reside in the state, the same may be tried in any county which the plaintiff shall designate in his complaint; subject, however, to the power of the court to change the place of trial, in the cases pro- vided by statute. " Sec. 126. If the county designated for that purpose in the complaint, be not the proper county, the action may, notwithstanding, be tried therein, unless the defendant shall, before the time for answering expire, demand in writing that the trial be had in the proper county." For the present law in New York, see New York Code of Civil Procedure, sees. 982-991. In England it is provided by the Rules of the Supreme Court, 1883, Order XXXVI, Rule 1, that " There shall be no local venue for the trial of any action, except where otherwise provided by statute, but in every action in every Divi- sion the place of trial shall be fixed by the Court or a judge." See Annual Practice, 1914, p. 581; Odgers, Pleading & Practice, 6th ed., 67, 68. — Ed. 12 VENTE convenience, adjourned the cause to a Special Term of the Supreme Court, to be held at Brooklyn, in the county of Kings. The de- fendants objected to the ailjourmnent to the county of Kings, but their objection was overruled. The cause was tried at the Kings county Special Term, and an order for final judgment was made in said county of Kings, though the judgment was entered and the costs atljusted in Queens county. From the judgment so entered, an appeal was taken to the Gen- eral Term, where the judgment was affirmed, and from such judg- ment of affirmance an appeal was taken to this court. Andrews, J.^ The legislature, having in view some general policy for the distribution of the judicial business of the State, as well as the convenience of parties, has prescribed the place where the trial and other proceedings in actions in the Supreme Court shall be had. The place of trial of actions is provided for in title four of part second of the Code, and it declared in section 123 that actions for certain specified causes must be tried in the county where the cause of action, or some part thereof, arose, subject to the power of the court to change the place of trial in cases where (1) the county designated for that purpose in the complaint is not the proper county, or (2) when there is reason to beheve that an impartial trial cannot be had therein, or (3) when the convenience of wit- nesses, and the ends of justice would be promoted by the change. The action for the foreclosure of a mortgage upon real property is among the causes specified in this section. . . . This action was triable in the county of Queens. The mortgaged premises, which were the subject of the action, are situate in that county. That was the place named in the com- plaint as the place of trial. The cause was at issue and noticed for trial at a Special Term in that county, and the court had not changed the place of trial under the 126th section of the Code. The justice who held tlu; Special Term, when the cause was reached, on his own motion, and, as stated in the case, for his own convenience, against the objection of the defendants, adjourned the hearing to a SjM'cial Term tiKTcafter to be held in the county of Kings, and the cause was tried in tli;it county undcx this order of the court. The ground ujxiii which the court proceeded in cliaiigiiig the place of trill! is not one of those ineiitioiied in tlie section we have ' A jmrt of till' iiunn i'^ (iiiuttcd. Kd. BIRMINGHAM IRON FOUNDRY V. HATFIELD 13 cited, and unless the authority is found elsewhere, the action of the court was irregular and unauthorized. . . . The defendants by appearing upon the trial of the action did not waive their objection to the adjournment of the trial to Kings county. The court could not, without the consent of the parties, try the action in that county. If no objection had been made by the de- fendants, their presence at the trial might have been evidence of such consent; but, having made the objection, they were not obliged to renew it. Nor were they compelled to abandon their defense on the trial in order to preserve the rights secured to them by statute. The judgment should be reversed and a new trial ordered, with costs to abide the event. All the judges concurring, judgment reversed and new trial ordered.^ ^ As to the power to grant a change of venue, see Cochecho R. R. v. Farring- ton, 26 N. H. 428; Tidd, Practice, 8th ed., 650-653; 40 Cyc. 116; 4 Encyc. of PI. &Pr. 373. — Ed. CHAPTER II. PROCESS. Section I. Form of Process. {Form of Writ of Summons in England.) ^ In the High Court of Justice. > Division. Between A.B., Plaintiff, and CD., Defendant. George the Fifth, by the grace of God, of the United Kingdom of Great Britain and Ireland, and of the British Domin- ions beyond the Seas, King, Defender of the Faith. To C. D. of in the county of We command you, That within eight days after the service of this writ on you, inclusive of the day of such service, you do cause an appearance to be entered for you in an action at the suit of A.B. ; and take notice that in default of your so doing the plaintiff may proceed therein, and judgment may be given in your absence. Witness, Richard Burdon, Viscount Haldane of Cloan, Lord High Chancellor of Great Britain, the day of in the year of Our Lord One thousand nine hundred and \MciiuiTaiitlum to be suhscribcd on the writ .] N.B. — This writ is to be served within twelve calendar months from the date thereof, or, if renewed, within six calendar months from the date of the last renewal, including the day of such date, and not afterwards. The defendant may appear hereto by entering an appearance either personally or by solicitor at the Central Odiee, Royal Courts of .lu-^ticc, Loriiioii. ' 'IliiH irt ihf KcrnTiil form of a Writ of .SimunonH in the Hinh Court of JiiHiic*', iiH provirlcd for by the Ilult'H of thi; Supreme! (^)url, ISS,'}. Tlic form of u writ for iHwuc from a Dintrict Ri-girttry, or of a writ for Bcrvico out of tin; 14 FORM OF PROCESS 15 [Indorsements to be made on the writ before issue thereof :] The plaintiff's claim is for damages for breach of contract to accept and pay for goods. This writ was issued by the said plaintiff,^ who resides at [Indorsement to be made on the writ after service thereof :] This writ was served by me at on the defendant on the day of , 19 Indorsed the day of , 19 (Signed) (Address) is,) {Form of Writ of Summons in Illinois.) ' State of Ilhnois, County of Cook, The People of the State of Illinois, to the Sheriff of said County, Greeting : We command you that you summon C. D. if he shall be found in your County, personally to be and appear before the Circuit Court of Cook County, on the first day of the term thereof, to be holden at the Court House in the City of Chicago in said Cook County, on the third Monday of a.d., 19 , to answer unto A. B. in a plea of trespass on the case upon promises, to the damage of said plaintiff, as it is said, in the sum of dollars. And have you then and there this writ with an endorsement thereon, in what man- ner you shall have executed the same. Witness, M. N., Clerk of our said Court, and the seal thereof, at Chicago, in said County, this day of a.d. 19 M. N., Clerk. [Return of sheriff, endorsed on summons :] Served this writ on the within named defendant, C. D., by reading the same to him, and at the same time delivering a copy thereof to him this day of , 19 S. T., Sheriff. Fees: By V. W., Deputy. jurisdiction, or of a specially indorsed writ, is slightly diflferent. See Rules of the Supreme Court, 1883, Appendix A., Part I. 1 Or, This WTit was issued by E. F., of , whose address for service is .solicitor for the said plaintiff, who resides at ; or, This writ was issued by G. H., of , whose address for service is agent for of , solicitor for the said plaintiff, who resides at SEAL OF THE CIR- CUIT COURT OF COOK COUNTY. 16 PROCESS (Form of Writ of Summons and Attachment in Massachusetts.) ^ Commonwealth of Massachusetts. Suffolk, ss. To the Sheriffs of our several Counties or their Deputies, SEAL of the superior court. Greeting. We command you to attach tho goods or estate of C. D., of Boston, in said County, defendant, to the value of dollars, and to summon the said defendant (if he may he found in your precinct) to appear before our Justices of our Superior Court to be holden at Boston, within and for our said County of Suffolk, on the first Monday of next; then and there in our said Court to answer unto A. B., of Boston, in said County, plaintiff, in an action of contract, to tiie damage of the said plaintiff (as he says) the sum of dollars, which shall then and there be made to appear with other due damages. And have you there this writ with your doings therein. Witness, , Esquire,'^ at Boston, the day of , in the year of our Lord one thousand nine hundred and M. N., Clerk. [Officer's return, endorsed on (he urit ;] Suffolk, ss. Boston, 19 By virtue of this writ, I this day attached a chip as the property of the within named defendant, C. D., and afterwards on the same day, I summoned said defentlant to appear and answer at Court as within directed, by delivering to him in hand a summons to- gether with an attested copy of this writ. Said service was made at Fees: _ V. W., Deputy Sheriff. ' Tho form horo Rivon in that of a siimmon.s and attachment, which is tho writ ordinarily u.h<(1 in actions which arc not Ix-j^iin l)y the trustee process. When no actual attacliment is desireil by the plaint ilT, the oflicer makes a reluni like that in the form here j^iven. It is possible, but very unusual in practice, to benin an action by an original Hummons, nimilar in form t<} tho Hummonfl and atUichment, cxcejjt that the din-ction to attach the ^omls and iwtato of the defendant is omitUnl. See MiuM. U. L., c. I(i7, sees. 15-17. For H form of original Hummons, wh' Mh-hs. (J. L., p. 1(V2. — Ki). * 'I'lie CVinsfitution of Mass., Part 11, c. VI, art. h, provides that all writs uwuiiiK out of the clerk's othce in any of the courts of law " sliall bear test of NEEDHAM V. THAYER 17 (Form of Summons in New York.) ^ Supreme Court of the State of New York County of New York A.B., Plaintiff ) against r Summons. CD., Defendant ^ To the above named defendant : You are hereby summoned to answer the complaint in this action and to serve a copy of your answer on the plaintiff's attorney within twenty days after the service of this summons, exclusive of the day of service, and in case of your failure to appear, or answer, judgment vdW be taken against you by default for the relief de- manded in the complaint. Dated X. Y., Attorney for Plaintiff. Ofl&ce and Post-Office address, No. 1000 Wall Street, Borough of Manhattan, The City of New York. Section II. Service of Process. A. As A Basis of Personal Judgment. NEEDHAM v. THAYER. Supreme Judicial Court of Massachusetts. 1888. [Reported 147 Massachusetts, 536.] Contract on a judgment recovered by the plaintiff, on March 7, 1874, in the Superior Court. Writ dated May 16, 1887. The answer alleged, that the plaintiff ought not to maintain the action against the defendant " upon said judgment, because he had no notice of said suit in which said judgment was obtained; that at the time of the service of said WTit in said last-named action the the first justice of the court to which they shall be returnable, who is not a party." — Ed. ' The form of summons here given is provided for by the New York Code of Civil Procedure, sec. 418, wherein it is also provided that " the summons is deemed the mandate of the court." — Ed. 18 PROCESS defendant was an inhabitant and resident of the State of Connecti- cut, and had no notice of the commencement of said action, or of its pendency in court." At the trial in the Superior Court, ^^^thout a jury, before Dun- bar, J., after evidence that the judgment remained unsatisfied, the defendant offered evidence tending to show that at the time the original action, resulting in the recovery of the judgment, was commenced, he was not a resident of this Commonwealth, but was a resident of the State of Connecticut; that no service of the writ in that action was made as required by law, and no notice was given to him of such action; that such action was brought without his knowledge, and that he had no notice of the same until after the commencement of this action; and that the judgment in the origi- nal action was obtained against him by default. The judge, upon objection by the plaintiff, excluded the evidence, and found for the plaintiff; and the defendant alleged exceptions. Morton, C. J. The question of the validity of a judgment rendered by a court of this State against a defendant who was not a resident of the State, and who was not served personally with process within the State, was considered in Eliot v. McCormick, 144 Mass. 10. In that case this court, following the decisions in the Supreme Court of the United States, held that such judgment contravened the fourteenth article of the Amendments of the Con- stitution of the United States, and was invalid, and would be re- versed upon a writ of error. The case at bar presents the question, whether, in a suit in this State upon such a judgment, the defendant may show by \)\va and proof that it is invalid. The recent cases in the Supreme Court of the United States go upon the ground, that a judgment in personam against a person wiio is not a resident of tiie State, who has not been personally served with process, and who has not ai)peared, is wholly \()'u\, and that no suit can be maintained on it, either in the same or in any otiicr court. Peiuioyer v. Ncff, 95 U. S. 714, 732. Freeman ?'. Aldcrsoii, 119 U.S. 185. The court has no juristliction, and its judgnicnt lias no force, eitiier in the State in which it was rendered, (jp in any other State, 'i'his being so, the judgment can- not be enforced by a suit upon it., and the non-resident, defendant cannot lie deprived of his right to show hy pl<'a and i)roof, if sucii suit i.s brought., that the judgment is void, without an abridgment of his privilege's and iinmunilies, to protect which was the oI)ject of tin; fourteenth artich- of Amen(hnin1 . To compel him to resort to our courts by a writ of error, in which he must liU; a bond if he NEEDHAM V. THAYER 19 would obtain a stay of the execution, is to impose a burden upon him, and thus to abridge his privileges and immunities. It has been held, in many cases, that a domestic judgment cannot be im- peached by plea and proof in a suit brought upon it, because the proper remedy is a writ of error. Hendrick v. Whittemore, 105 Mass. 23, and cases cited. But while a State may make laws binding its own citizens, requiring them to resort to a writ of error, it cannot so bind citizens of other States. The case of McCormick v. Fiske, 138 Mass. 379, seems opposed to our views. But in that case the question of the effect of the fourteenth article of Amendment was not raised or suggested to the court, and therefore was not considered. In the case at bar, the effect of that amendment is involved. The defendant's an- swer sets up that, at the time when the original suit was brought against him, he was a non-resident, and that no service was made upon him. We are of the opinion that he had the right to impeach the judgment by proof of these facts, and that the ruling rejecting such evidence was erroneous. Exceptions sustained.^ 1 A personal judgment against a non-resident defendant served by publica- tion only is held invalid even in the state where it is rendered. Cocke v. Brewer, 68 Miss. 775, 9 So. 823; Smith v. McCutchen, 38 Mo. 415; McKinney V. CoUins, 88 N.Y. 216; Paxton v. DanieU, 1 Wash. 19, 23 Pac. 441. A personal judgment against a non-resident defendant personally served outside the state where the judgment is rendered is likewise held invahd even in that state. Harkness v. Hyde, 98 U. S. 476, 25 L. ed. 237; Denny v. Ashley, 12 Col. 165, 20 Pac. 331; Long v. Insurance Co., 114 N. C. 465, 19 S. E. 347; WaUace v. United Electric Co., 211 Pa. 473, 60 Atl. 1046; Scott v. Streepy, 73 Tex. 547, 11 S. W. 532. No action will lie in another state on a personal judgment against a de- fendant not personally served within the state where the judgment is rendered nor resident therein. Buchanan v. Rucker, 9 East, 191; Schibsby v. Westen- holz, L. R. 6 Q. B. 155; Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565; Rand V. Hanson, 154 Mass. 87, 28 N. E. 6; McEwan v. Zimmer, 38 Mich. 765; Whittier v. Wendell, 7 N. H. 257 (semble); Price v. Schaeffer, 161 Pa. 530, 29 Atl. 279, 25 L. R. A. 699. And the mere fact that the cause of action arose within the state where the judgment is rendered does not give its courts juris- diction. Sirdar Gurdyal Singh v. Rajah of Faridkote, (1894) A. C. 670; Emanuel v. Symon, (1908) 1 K. B. 302. — Ed. 20 PROCESS SMITH V. GIBSON. Supreme Court of Alabama. 1887. [Reported 83 Alabama, 284.] Clopton, J. The action was brought by appellee in the Cir- cuit Court of Walker county, to recover the amount due on a prom- issory note made by appellant. The defendant filed a plea to the jurisdiction of the court, on the ground that, at the commencement of the suit, and of the service of process, he was a resident citizen of Maryland. The assignments of error only relate to the ruling of the court, sustaining a demurrer to the plea. The summons was served on the defendant in person by the sheriff. The plea does not negative his presence in the county at the time of service; and fails to aver that he was induced by false representations, or by any artifice, to come within the jurisdiction of the court, for the purpose of obtaining service of process upon him. The general rule is, that every country has jurisdiction over all persons found within its territorial limits, for the purposes of ac- tions in their nature transitory. It is not a debatable question, that such actions may be maintained in any jurisdiction in which the defendant may be found, and is legally served with process. However transiently the defendant may have been in the State, the summons having been legally served upon him, the jurisdiction of his person was complete, in the absence of a fradulcnt induce- ment to come. — Peabody v. Hamilton, 106 Mass. 217; 76 Amer. Dec, note, 667; Whar. C^on. Laws. §§ 738, 739. The statute pro- viding that suits against a rc^sident free-holder or house-holder must be brought in the county of his residence, has no ai)plication. Affirmed.^ « Darrah v. Watson, .30 la. 110; Alloy v. Ca.spari, 80 Mo. 234, 14 Atl. 12; Thoni().son v. CowcU, llH M;i.s,s. r)')2, 20 X. K. 170, nrmrd. So altliounh the plaititifT i.s al.so a noii-rc-^iiicnt. Leo v. Haird, 13i) Ala. .'52t), 30 So. 720; Vvu- \xx\y V. Ilamiltoii, 100 .\Ia.s.s. 217. See page; 2, note 1, ante. •Mktiiods ok Effectino Personal Sehvice In the ahwnce of any statutory provision a.M to fin- nictlKMl of cfTi-r'tiiiK ponwitial Horviof, it liiiH been held that the miininon.s mu.st he read to the d.-fendant. Law v. Crornrne.s, l.W 111. 4!»2, 41 N. K. lOSO. (For the jjresent rule in IllinoiH hoo Hurd'.s K. S. I'Jlli, eh. 1 10, Hen. 2.) The iiicih(Ml of ••fTiTtitiK [xTsotial .scrvire in n-KuI.'ited by HtatutcH in the Btrvcral Btatc«. The UHUal incthod in by ddiviry of a cojiy of the HuinmonH, MATTHEWS V. TUFTS 21 MATTHEWS v. TUFTS. Court of Appeals of New York. 1882. [Reported 87 New York, 568.] Appeal from order of the General Term of the Supreme Court, in the first judicial department, made October 21, 1881, which re- versed an order of Special Term, setting aside the service of the summons herein upon defendant Tufts, and dismissing the action as to him. The motion was founded upon the affidavit of said defendant, which stated in substance that he was a resident of Boston, and came to the city of New York for the purpose of attending at the first meeting of creditors of Edward Matthews, a bankrupt, the husband of the plaintiff, held there before a register in bankruptcy; that defendant " attended said meeting solely as a creditor and witness, to prove certain debts and claims against the estate of said bankrupt, to participate in the choice of assignee, and for no other purpose." " While still attending in said office as such wit- ness," and " about fifteen minutes after the meeting had ad- journed," the summons in this action was served on the defendant. The bankrupt made an opposing affidavit, in general terms, claiming that the defendant was, " in fact, no creditor of this deponent in said bankruptcy matter or otherwise, and was not at the date of said meeting." It was admitted that the defendant did prove eight claims at the meeting, amounting to $386,568.53. Rapallo, J. In Van Lieuw v. Johnson, decided March, 1871, and referred to in Person v. Grier, 66 N. Y. 124, a majority of this court were of opinion that a summons could not be served upon a defendant, a non-resident of the State, while attending a court in this State as a party. This immunity does not depend upon stat- utory provisions, but is deemed necessary for the due administra- with or without an exhibition of the original; or by reading the summons or explaining its contents. As to how far the defendant may prevent service by refusing to hear the summons read, or by refusing to receive a copy of it, or otherwise, see Heath v. White, 2 Dowl. & L. 40; Boggs v. Inter- American, etc., Co., 105 Md. 371, 66 Atl. 259; Slaght v. Robbins, 13 N. J. L. 340; Van Rensselaer v. Petrie, 2 How. Pr. (N. Y.), 94; Davison i^. Baker, 24 How. Pr. (N. Y.), 39; Correll v. Granget, 12 Misc. (N. Y.), 209, 34 N. Y. Supp. 25; Borden v. Borden, 63 Wis. 374, 23 N. W. 573. Compare Krotter & Co. v. Norton, 84 Neb. 137, 120 N. W. 923. — Ed. 22 PROCESS tion of justice. It is not confined to witnesses, but extends to parties as well, and is abundantly sustained by authority. Cole V. Hawkins, Andr. 275; s. c, 2 Str. 1094; Arding v. Flower, 8 T. R. 534; Miles v. McCuUough, 1 Binn. 77; Hayes v. Shields, 2 Yeates, 222; Parker v. Hotchkiss, 1 Wall. Jr. 269; Juneau Bank v. IMcSpedan, 5 Biss. 64; Halsey r. Stewart, 1 South. [X. J.] 366; Miller v. Dungan, 8 Vr. [N. J.] 182; In re Healey, 53 Vt. 694. This exemption from ser\nce of civil process has been frequently ac- corded to creditors attending proceecUngs in bankruptcy {Ex parte List; 2 Ves. & B. 373; Ex parte King, 7 Ves. Jr. 312), and to a creditor who attended before the commissioners to propose himself as assignee and watch the proceedings. Selby v. Hills, 8 Bing. 166. Commissioners in bankruptcy are a court of justice sufl&cient for the purpose of ha\'ing their \\'itnesses protected by the Court of Chancer}', at least, if not by themselves. They sit in the nature of a court in the administration of justice. Arding v. Flower, 8 T. R. 534. In proceedings in bankruptcy the due administration of justice requires that all the creditors should be free to attend, without interference by service of process of any kind. The moving affidavit showed that the defendant came from Boston where he resides, to New York, and attended the meeting of credi- tors at the office of the register in bankruptcy, solely as a creditor and witness, to prove certain debts and claims against the estate of the l)ankrupt, and to participate in the choice of an assignee, and for no other purpose; that while so attending, and while the meet- ing was being held, or immediately thereafter, before he had time to complete his business as such creditor and witness at such meet- ing and leave the office, the summons was served upon him. It appears that the defendant did at said meeting jjresent proofs of claims amounting to upwards of S386,000 in his own behalf, and also presented proof of claims of other creditors as their attorney in fact, and voted for the assignee both individually and as attorney for the other creditors whom he represented, and tliat tiie i)roofs of debt had Ixcn prepared and verified in Massachusetts. Tiie plaint ifT claims that tli(^ defendant was not attending as a witness, i>ut only as a creditor, and also, on the hearing of the motion, read affidavits den\iiig the vahdity of his claims as a creditor. These claims ccjuld not be tried on the motion to set aside the service, and, conecding that the defendant was in attendance oidy as a party, and aH attorney of other parties, we think that lie was privi- leged from service of pnjcess or summons while so attending. MATTHEWS V. TUFTS 23 The order of the General Terra should be reversed and that of the Special Term affirmed, with costs. All concur. Ordered accordingly.^ ^ For conflicting decisions as to the privilege of non-resident parties from service of civil process, see Hale v. Wharton, 73 Fed. 739; Bolz v. Crone, 64 Kan. 570, 67 Pac. 1108; Parker v. Marco, 136 N. Y. 58.5, 32 N. E. 989, 20 L. R. A. 45, 32 Am. St. Rep. 770; Andrews v. Lembeck, 46 Oh. St. 38, IS N. E. 483, 15 Am. St. Rep. 547, which allow the privilege; Bishop t;. Vose, 27 Conn. 1; Baisley v. Baisley, 113 Mo. 544, 21 S. W. 29, 35 Am. St. Rep. 726 (semble), which deny the privilege. As to privilege of non-resident witnesses from service of civil process, see Chittenden v. Carter, 82 Conn. 585, 74 All. 884, 18 Ann. Cas. 125; Greer t;. Young, 120 111. 184, 11 N. E. 167; Mitchell v. Huron Circuit Judge, 53 Mich. 541, 9 N. W. 176; Mulhearn v. Press PubUshing Co., 53 N. J. L. 153, 21 Atl. 186, 11 L. R. A. 101; In re Healey, 53 Vt. 694. As to privilege of parties and witnesses from service of civil process while actually in court, see Cameron v. Roberts, 87 Wis. 291, 58 N. W. 376. As to privilege of non-resident defendants in criminal suits from service of civil process, see Dwelle v. Allen, 193 Fed. 546; Murray v. Wilcox, 122 la. 188, 97 N. W. 1087, 64 L. R. A. 534, 101 Am. St. Rep. 263; Netograph Mfg. Co. v. Scrugham, 197 N. Y. 377, 90 N. E. 962, 27 L. R. A. (n.s.), 333, 134 Am. St. Rep. 886. On the question whether non-resident attornej-s are privileged from service of civil process, see Robbins v. Lincoki, 27 Fed. 342; Read v. Neff, 207 Fed. 890; Hoffman v. Bay Circuit Judge, 113 Mich. 109, 71 N. W. 480, 38 L. R. A. 663, 67 Am. St. Rep. 458; Greenleaf v. Bank, 133 N. C. 292, 45 S. E. 638, 63 L. R. A. 499, 98 Am. St. Rep. 709; Whitman v. Sheets, 20 Oh. Cir. Ct. 1. Compare National Press Intelligence Co. v. Brooke, 18 Misc. (N. Y.), 373, 41 N. Y. Supp. 658. On the question of privilege of a non-resident party to an action from service of process in an action for a wTong in connection with the original action or for a cause of action arising after he has come into the state, see Nichols v. Horton, 14 Fed. 327; Iron Dyke Copper Min. Co. v. Iron Dyke R. Co., 132 Fed. 208; MuUen v. Sanborn, 79 Md. 364, 29 Atl. 522, 25 L. R. A. 721, 47 Am. St. Rep. 421. As to privilege from arrest of parties, witnesses, and attorneys, see Thomp- son's Case, 122 Mass. 428; Ellis v. Degarmo, 17 R. I. 715, 24 Atl. 579; Tidd's Practice, 8th ed., 198-200; 3 Blackstone, Com. *289. As to waiver by failure to object to a violation of privilege, see Morrow v. U. H. Dudley & Co., 144 Fed. 441, where on the facts it was held that the privilege was not waived. As to privilege of legislators, see Howard v. Trust Co., 12 App. D. C. 222; Berlet v. Weary, 67 Neb. 75, 93 N. W. 238, 60 L. R. A. 609, 108 Am. St. Rep. 616; Bartlett v. Blair, 68 N. H. 232, 38 Atl. 1004; Worth v. Norton, 56 S. C. 56, 33 S. E. 792, 76 Am. St. Rep. 524. As to the effect of fraud in inducing the defendant to come into the state and there serving him with process, see Jaster v. Currie, 198 U. S. 144, 49 L. ed. 988, 25 S. Ct. 614 (where it was held, reversing s.c, 69 Neb. 4, 94 X. W. 995, that the facts did not amount to fraud); Frawley, Bundy & Wilcox v. Penn. 24 PROCESS CABANNE V. GRAF. Supreme Court of Minnesota. 1902. [Reported 87 Minnesota, 510.] Start, C. J.^ Action in the municipal court of the city of St. Paul to recover damages for a breach l)y the defendant of a con- tract whereby he agreed to employ the plaintiff for a stated period. Judgment was entered by default against the defendant for the sum of $490.92 costs and damages. The proof of the service of the summons was to the effect that it was served by the plaintiff's attorney upon the defendant by hand- ing to and leaving with his agent and representative (naming him) a true copy thereof, and that the defendant had been engaged in business in the city of St. Paul for six months then last past, and was absent from this state. The defendant appeared sjiecially, and moved the court to set aside the j udgment as void. The plain- tiff then made a motion to amend his proof of service of tiie sum- mons so as to show that the defendant was a nonresident of the state of Minnesota, and not therein, but had been for more than a year then last past actively engaged in carrying on business at the city of St. Paul, which was in charge of his agent and representa- tive, upon whom service was made. The trial court allowed the proof of service to be so amended, and denied the defendant's motion to set aside the j udgment as void. The defendant appealed from the order denying his motion. It evidently was the intention of the plaintiff to make service of the summons in this case pursuant to the provisions of Laws 1901, c. 278, which are to the effect that, whenever a cause of action exists in iiiVOT of a residentof this state against any nonresident individ- ual, association, or copartnersliip engaged in business in this state, by reason of such business, the summons may be served upon the manager, suix-rintcndcnt, foreman, agent, or representative of such individual, association, or copartnershi]) while in charge of CaHUalty Co., 124 FchI. 259 (whern an agent of the defendant corporation was inv<-inl«", t>9 .MI. 553 fwlnre it wiiH h<-ld tliat tlie Hcrvice wjus noo<'ral qucMtioii of i)rivili->^c, Ald'ing on business in Scotland or Ireland, by leaving the same at the office of the London Corn Trade Associa- tion, together with the posting of a copy of such proceedings to the address in Scotland or Ireland, shall be deemed good service," i. e. good personal service. In the first place, it seems to me to be clear that the expression " service of proceedings " includes the service of a wTit. That being so, the service contemplated by the con- tract is service at the office of the London Corn Trade Association. That does not mean, as has been suggested, that the writ may be served by merely pushing it under the door of the office or doing anything of that sort. It means that the writ must be left ^\^th some person at the office, as was done in this case. The service was therefore effected at the office in accordance with the contract. After the service had been so effected, a letter containing a copy of the writ was, in accordance with the contract, posted to the de- fendants in Scotland to inform them that the WTit had been served. The question arises whether that agreement as to service is or is not a valid agreement. The \\Tit, as I have said, has been served in the manner in which the parties agreed that it should be served. The defendants, nevertheless, say that there has been no effective personal service upon them, because the agreement as to service is invalid. To my mind that point is not tenable. I can see nothing in the rules to prevent the parties from agreeing to such a course of proceedings, and I can find no case in the books which shews that such an agreement as that made in this case is invalid. The case of Tharsis Sulphur Co. v. Soci6t<5 Industriellc des M(?taux, 58 L, J. ((2. B.) 435, 60 L. T. 924, is an authority in sui)port of the propo- sition that the parties can, as regards the mode of service, contract themselves out of the rules, and may appoint a person as agent to accept service, so long as they do not ask the Court to do some- thing which it is prohil)ited from doing under the rules. In the present ca.so no application was made to the Court for leave to serve the writ in the manner agreed upon, nor was any apj^lication necessary. The ca.se of British Wagon Co. r. Cray, [mU)] 1 i}. ]\. 35, was relied upon by defendants. That decision went ui)on Order xi, r. 1 (e), which deals with service out of the jurisdiction. That rule allows service of a writ 'out of the jurisdiction where the action is founded on any Ijrcach within the j\irisdiction of any contraft wherever made, which uccordiiig to the terms thereof ought to be perfornied within the juri.s(liction; i)ut the last clause MONTGOMERY, JONES & CO. V. LIEBENTHAL & CO. 29 expressly prohibits the rule from being applicable in the case of a defendant who is domiciled or ordinarily resident in Scotland or Ireland. The plaintiffs in British Wagon Co. v. Gray, [1896] 1 Q. B. 35, applied, and had to apply, for leave to serve the writ on the defendant, who was resident in Scotland, on the ground that he had agreed to be served in Scotland; but Mathew, J., at chambers refused leave on the ground that the rule expressly forbade such an order being made by the Court, and that the existence of the agreement could make no difference; and this Court affirmed his decision upon that ground. The pith of that case is well summed up by Lopes, L. J., where he says that " assuming the contract had the effect which it is contended that it had, I think it is clear that the parties had no power to contract that the Court should have a jurisdiction which is forbidden by the rules." Lord Esher, ]\LR., said that " the Court can take no notice of such an agreement, and can only order service of the writ in the manner allowed by the rules, and not in any other manner upon which the parties may agree." With that I entirely agree; but that is not this case. There is no application to the Court in this case to do something which it is forbidden by the rules to do. This case comes within the decision in Tharsis Sulphur Co. y. Socicte Industrielle des M6taux, 58 L. J. (Q. B.) 435, 60 L. T. 924, which I think is a right decision. The appeal must, therefore, be dismissed. Appeal dismissed.^ ^ Jurisdiction may be conferred by implied as well as by express consent. See Copin v. Adamson, L. R. 9 Exch. 345; Feyerick v. Hubbard, 71 L. J. K. B. 509; Emanuel v. Symon (1908), 1 K. B. 302. A statute is constitutional which provides that the plaintiff in an action who is not an inhabitant of, or cannot be found within the state, shall be held to answer to a cross action by the defendant, if the demands in the two cases are such that the judgments or executions can be set off against each other, and that the WTit in such cross action may be served on the person who appears as the attorney of the plaintiff in the original action. Aldrich v. Blatchford, 175 Mass. 369, 56 N. E. 700; Arkwright Mills v. Aultman, etc., Co., 128 Fed. 195. — Ed. 30 PROCESS ALLURED v. VOLLER. Supreme Court of Michigan. 1895. [Reported 107 Michigan, 476.] On the third of Xovembor, 1802, the jilaintiff commenced suit in the Osceola Circuit Court against one l^ihert D. Pierson. There was no return of service upon Pierson, hut the following accept- ance of service was filed, and the genuineness of the signature proved by affidavit: "Flint, Mich., 11-8-1892. " I, Elbert D. Pierson, defendant in tlu^ within attached sum- mons, do hereby accept service of the same tiiis 1 1th day of Novem- ber, 1892, and hereby waive formal service b}' an officer, and allow the plaintiff herein named to proceed with the case, the same as though service had been made as commanded in said summons. " Signed in the presence of " Lizzie Pierson. (Signed) " Elbert D. Pierson." The plaintiff obtained j udgmcnt against Pierson and a levy was made on a certain parcel of land and a sale was subsequently made thereunder to the plaintilT. The defendant in the present action subsequently procured a quitclaim deed of the same land from Pierson and the plaintiff brought this action of ejectment therefor. The plaintiff recovered judgment and the defendant a]">peals.' Montgomery, J. . . . The authorities are not harmonious on the question of the effect of a mere acceptance of a service of a writ beyond the jurisdiction of the court. Perhaps by the weight of authority such acceptance operates as evidence of a service at the place where such acceptance is indorsed, and has no greater effect than pnjof of an actual service made at that place. 2 Enc. PI. & Pruc. 038, and cases cited. But see Vermont Farm Machine Co. v. Marble, 20 Fed. 117; Cheney v. Harding, 21 Neb. 65; Johnson V. Monell, 13 Iowa, 300.- I'ut in the i)rcscnt case the imlorseincnt ' Thf HtHtcriuTit of fiU'tM i.s tiikcii from tlic opinion and is sonirw liat altrid^cd. A part of th«; o|)inion in omit t t-d. - - Vak ' For the effect of acknowlcdniricnt of Hcrvicn within tlic jiiriMdiction, hco Fnmklin v. ConnuJ-.Stuiiford Co., IM Fed. 7;J7; Purccll v. Ht-nm-tt, OS N. J. L. 619, S3 Ail. 2:ir,; Ktoddanl Mf^. Co. v. Miittico, 10 S. I). '2'ui, 72 N. \V.S<)1. Ah to nrknowIcnt made out.sidc! the jiirisdirtion, hcc Itichard.son v. Smith, 11 AII-ti (Mrnw.), 1;M; Jon.-Hf. M. Trill, 1 1:} Mich. 4;i:{, 71 N. W. S.W; Litch- field V. Hurw.ll, 5 ilow. I'r. (.N'.V.I, .'Ml; White v. White, m W. \n. 79, 66 K. F. 2, i:{.') Am. St. Itej). lOl.i. Comp.are Codwin v. Monds, 10(1 N. C. 448, 10 S. F. IMl 1. S.'e :{2 ("ye. l.'.O; !•» lincye. of i'l. and I'r. (■.'.»7. - Fi). CONTINENTAL NATIONAL BANK V. THURBER AND OTHERS 31 on the summons was something more than an acceptance of service. It contained a stipulation that plaintiff might " proceed with the case the same as though service had been made as commanded in said summons"; that is, in the county. If an appearance may operate to waive service, as is universally held, it is difficult to understand why an agreement to waive service, duly signed, and evidently intended to be filed in the case, may not and should not have a like effect. It has been held that the admission of service is, if accompanied by an agreement to enter an appearance, suffi- cient to confer jurisdiction, even though such agreement be made beyond the territorial jurisdiction of the court. Keeler v. Keeler, 24 Wis. 525; Shaw v. Bank, 49 Iowa, 179. See, also, cases cited above. . . . Judgment affirmed, with costs. ^ Long, Grant, and Hooker, JJ., concurred. McGrath, C. J., did not sit. CONTINENTAL NATIONAL BANK v. THURBER and Others. Supreme Court of New York, General Term. 1893. [Reported 74 i/M«, 632.] 2 FoLLETT, J.^ This action was brought to recover of the appellant the amount due on a bill of exchange, dated January 18, 1893, drawn and payable at the city of New York, and indorsed by the defendant at that city. When the bill was drawn the defendant was, and has ever since remained, a resident citizen of this State. The summons in this action was issued August 10, 1893, and on the twenty-third of the same month an order for the substituted service of it on the defendant was granted, pursuant to section 435 of the Code of Civil Procedure.* ^ As to the effect of a voluntary' appearance, see Chapter III, infra. As to judgments by confession, see Chapter X, infra. — Ed. 2 The order of the General Term was affirmed without opinion in the Court of Appeals, 143 N. Y. 648. — Ed. ' A part of the opinion relating to a motion to vacate the order for sub- stituted service, and the opinion deUvered at Special Term, are omitted. — Ed. •• The sections of the New York Code of Civil Procedure referred to in the principal case are as follows: " Sec. 435. Where a summons is issued in any court of record, an order for the service thereof upon a defendant residing within the State may be 32 PROCESS August 23, 1893, the summons and order were served on the defendant by leaving copies of them at his residence with a person of proper age, pursuant to said order and section 436 of the Code. The defendant failed to appear in the action, and September 16, 1893, judgment was entered against him, which he moved to vacate on the following grounds: " 1. That the court had not, at the date the said order for sub- stituted service was made, nor at the date said judgment was ren- dered, jurisdiction over the person of said Horace K. Thurber. '' 2. That said judgment, l)eing a personal judgment, is void, as there has been no personal service of the smnmons herein upon said Horace K. Thurber. " 3. That section 435 of the New York Code of Civil Procedure, under which said order for substituted service was made, is uncon- stitutional, being contrary to the provisions of article V and article XIV of the amendments to the Constitution of the United States. "4. That said judgment was so rendered against said Horace K. Thurber without due process of law." The motion was denied and said defendant appeals from the order. The appellant's sole point, which he has divided into four, is that the court did not acquire jurisdiction to render a personal judgment against him, not because all of the steps required by the Code were not duly taken, but because the legislation establishing the procedure for the substituted service is violative of the provi- sion of the Constitutions of the United States and of this State, that a person shall not be deprived of his property without due proc- made by the court or a judge thereof, or the county judge of the county where the action is triable, upon satisfactory proof, by the affidavit of a person, not a party to the action, or by the return of the sherilT of the county where the defendant resides, that proper and diligent elTort has been inadt; to serve the suninions ujjon the defendant, and that the; place of his sojourn cannot be ascertaineii, or, if he is within the State, that he avoids service, so that j)ersonal service cannot be made. ".Sec. 436. The order must direct, that the service of the summons be made, by leaving a copy thennjf, and of the order, at the residence of the defendant, with a person of prof)er age, if upon reasonable application, admittance can be obtaineley v. I^-high Valley Trust Co., 84 Fed. 002; Bryant v. Shute's Ex'or, 147 Ky. 26S, 144 S. W. 28 (service; by leaving copy at last place of residence); Ilarryman I'. Rol^Tts, 52 Md. 64 (service! by leaving cojjy at liust place of residence); HciiderHon V. Staniford, 105 M;uss. 501, 7 Am. Rej). 551 (.service outside the state). But rom[)are Crubel v. Nxs-sauer, 210 N. Y. 1113, 103 N. K. 1113 (HtTv'wc, by i)ul)li<"ation, on one. who wjls a Hul)ject of, but who w.-us not donii- cili>ununons upon the defendant, appellant. One of the plaintiffs is a resident of the State of New York. The defendant is a foreign corporation, organized under the laws of the State of Maine; hiis never been authorized to do business in this State, and has never done business here, or maintained an office or agent here for the transaction of business, and has not now, nor had when the summons was served, any pro])erty within this State. The summons was attempted to be served upon defendant by deliver)' to its treasurer, a resident of Massachusetts, while he was in transit through this State on his way from England to his home. Was this service valid and did it bring the defendant within the jurisdiction of the courts of this State ? This question is one upon which the decision of the Federal courts and the courts of this State have been in irreconcilable conflict for many years. Tested by the rule laid down in this State in Pope v. Terre Haute Car Mfg. Co., 87 N. Y. 137, and never explicitly overrukul or rescinded, the service was good, at least in so far as to confer jurisdiction of the defendant upon the courts of this State. Tested by the rule re- peatedly laid down by the Supreme Court of the United States, the service was bad, and conferred no jurisdiction over the defend- ant upon any court. Vide cases cited by Mr. Justice Clarke in Clrant v. Cananea Consolidated Copper Co., 117 App. Div. 576. Of cour.se, we are bound to follow the rule of our own Court of Morning News, 1.56 U. S. 518, 39 L. ed. 517, 15 S. Ct. 559; Caledonian Coal Co. V. Baker, 196 U. S. 4.32, 49 L. ed. 540, 25 S. Ct. 375; Newell v. Great W. Ry. Co., 19 Mich. SIH); Moulin v. Insurance Co., 24 N. J. L. 222; Aldridi v. Anchor Coal Co., 24 Ore. 32, 32 Vac. 756, accord. (Jii the (jucstion whether i\n' courts of a Htiite can obtain juri.sdiction over a foreign corporation which h.us never been cnKa^ed in l)u.sine,s,s in (he Ktate, by Hervicc of i)roce.sH on an aj^i'Ut who i.s in the Htate for the purpose of iuvestiKat- ing or adjusting the; claim uj)on which the suit is biused, see Louden Ma- chinery Co. V. Auier. Mall. Iron Co., 127 Fed. 1(X)K; Prerno SiM-ciaily Mfg. Co. V. Jerncy-Crenie Co., 2(KJ Fed. 352, 3 L. R. A. (N.8.), 1015 ; Painter v. C^olorado SpringH A C. C. I). Hy. Co., 127 Mo. Ar)p. 24H, 104 S. \V. 1 l.i'.t; Fond du Lac C. & ». Co. V. Meninngwn I'. Co., 141 Wis. 70. 123 .\. W. (ilO. - Ki.. ' The «)rderof the A|)|)ellate Division was adiriiied by tlu^ Court of .Appeals without opinion, 202 N. V. 5-17. — Eu. SADLKU V. BOSTON & BOLIVIA RUBBER CO. 41 Appeals, unless that rule is violative of the provisions of the Federal Constitution, or the Court of Appeals has itself rescinded the rule in the Pope ease and conformed to the rule laid down by the Su- preme Court of the United States. The appellant contends for both of these propositions. We do not so understand the present attitude of the Court of Appeals. Its latest expression upon the subject is contained in Grant v. Cananea Consolidated Copper Co., 189 N. Y. 241, In that case, after pointing out that the method of service now complained of is in strict conformity to the require- ments of the Code of Civil Procedure (§432, subd. 1), the court said: " But it is contended that the provisions of the Code are violative of the provision of the Constitution of the United States, already referred to. This we cannot admit." But it is argued that in the Grant case itself the Court of Appeals has abandoned its former position and adopted that of the Supreme Court of the United States. This argument is based upon the following sen- tence from the opinion of the court: "While we entertain the view that our statute upon the subject furnishes the safer and wiser rule to follow we shall in this case recognize and attempt to follow the rule laid down by the Federal court." We are unable to find in this expression any indication of an intent to recede from the rule announced in the Pope case, where that rule is applicable. The application of the Federal rule is especially and significantly limited to the particular case then under consideration, and as w^e understand the sentence above quoted, it means nothing more than the facts of that case brought it even within the rule adhered to by the Federal courts. Being bound, as we are, to follow the rule of the Court of Appeals as we understand it, we are compelled to affirm the order appealed from. The order should be affirmed, with ten dollars costs and dis- bursements. Ingraham, P. J., Miller and Dowling, JJ., concurred. Clarke, J. (concurring): The facts are on all fours with those presented upon a similar motion to set aside the service of the summons upon the same grounds in Pope v. Terre Haute Car Mfg. Co., 87 N. Y. 137, where the Court of Appeals refused to grant the motion, retained juris- diction and said: " A judgment to be rendered in an action thus commenced against a foreign corporation will be valid for every purpose within this State, and can be enforced against any property at any time found within this State. Its effect elsewhere need not now be determined." In Grant v. Cananea Consolidated Copper 42 PROCESS Co., 117 App. Div. 576, I cited a long line of cases in the Supreme Court of the United States rendered after the decision in the Pope case, holding such service void and a judgment based thereon vio- lative of section 1 of the 14th amendment of the United States Constitution. I believed then, and still believe, that a Federal question was involved and so we were bound by the rule laid down by the Supreme Court of the United States. But when the Grant case went to the Court of Appeals (189 N. Y. 241) that learned court said m reversing this court: " But it is contended that the provisions of the Code are violative of the provision of the Consti- tution of the United States, already referred to. This we cannot admit." This court is intermediate, not final. The orderly administra- tion of justice requires the subordination of individual views no matter how firmly fixed to those of our court of last resort, espe- cially when they have once been fully stated and submitted to that tribunal for consideration. Therefore, while my personal opinion is unchanged, namely, that the service here in question is bad and ought to be set aside, I vote to uphold it and to affirm the order appealed from upon the direct authority of the Pope case not weakened or modified by the Grant Case (supra). Order affirmed with ten dollars costs and disbursements} B. In Proceedings in Rem and Quasi in Rem. DE ARMAN v. MASSEY. Supreme Court of Alabama. 1907. [Reported 151 Alabama, 039.] McClellan, .J." Tills is an action sounding; in damages for an alleged assault and battery committed by appellant on appellee. It was begun l)y attachment, upon the ground that defendant was an absconder, and there wius no jxTsonal service had on the def(>nd- ant. Failing to appear, judgment by default was entered, and on writ of incjuiry the jury assessed the damages at S2,2()(). Upon this finding the court rendered a personal judgment against the defendant for said sum and also condciiincd to sale the real estate > Jf«tcr V. Steam Pocket Co., 131 N. C. .'54, -12 H. E. 1 J7, nccnnL - Ed. * 'Ilif Htiitrmcnt of fjirfH Ih omitted. - liii. DE ARMAN V. MASSEY 43 levied on. It is, of course, fundamental that, without jurisdiction of the person obtained, a personal judgment against a defendant cannot be validly rendered. To secure such jurisdiction the rule was, prior to Bank v. Clement, 109 Ala. 270, 19 South. 814, that notice implied in the levy, and service of notice in the manner pre- scribed of the levy, though such notice was not personally served on the defendant, availed to bring the defendant within the lawful powers of the court. This rule proceeded on the idea that the proceeding in attachment or garnishment was by nature in 'per- sonam. Whatever may have been the wisdom and soundness of such a rule, long enforced by the courts of this state, the theory of attachments, in keeping with which the mentioned rule obtained, was entirely changed when the Supreme Court of the United States, in a cause in which a nonresident was the party defendant, de- clared a proceeding in attachment or garnishment to be in rem, and not in 'personam. Accordingly, in Bank v. Clement, supra, this court yielding a proper influence to the announcement of the Supreme Court of the United States in a cause in which that court had superior and controlling jurisdiction, because of the nonresi- dence of a party therein, accepted the principle, and applied it in that case, viz., that without personal service a judgment in per- sonam against a merely constructively served defendant or gar- nishee could not be validly rendered, but that the proceeding in attachment or garnishment being, in the absence of personal ser- vice, in rem, the power of the court in the given cause was strictly limited to the enforcement of the pressed demand by the subjec- tion, if so entitled, of the property levied on to the satisfaction of the demand. So we are not confronted with the alternative whether the rule established to the behoof of nonresidents shall be denied or applied to residents who are not personally served, but whose property is under the ban of process in attachment or garnishment in the courts of this state. The character of proceedings, attachment or gar- nishment, being fixed in rem, and not in personam, we think that the principle stated compels the conclusion that no jurisdiction to render a personal judgment can be validly acquired unless the ser- vice is personal and actual, rather than simply constructive. If any other view was entertained, an incongruous situation would result, to say nothing of the ignoring of the principle upon which the rule as to nonresidents is rested by the Supreme Court of the United States. To cling to the earlier rule followed in this state would extend to the nonresident an exception which our own courts 44 PROCESS would deny to our own citizens. Independent of the principle and its consequent rule, common fairness, if its recognition imparts no other principle, demands that we make no insidious distinction against citizens of this state. It would be the creation of an in- sufferable anomaly to hold that in one class of cases such proceed- ings were in rem, and in another in personam. And it may be here generally observed that where, in attachment or garnishment pro- ceedings, no personal service was had, the trial court should, in accordance with its practices, ascertain the damages or debt to which the plaintiff is entitled, and then render a judgment only in condemnation of the property subject to be sold, the proceeds thereof to be applied to the satisfaction pro tanto of the ascertained debt or damages. Care should be taken to avoid the rendition of a personal judgment in the premises. — Bank v. Clement, supra. There having been no personal service on the appellant, defend- ant oelow, the judgment was erroneously rendered, and so it must be reversed, and the cause remanded. Reversed and remanded.^ Tyson, C. J., and Dowdell and Anderson, JJ., concur. BATES V. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Garnishee, etc. Supreme Court of Wisconsin. 1884. [Reported 60 Wisconsin, 296.1 Taylor, J.^ After a careful consideration of the facts, and the arguments of the learned counsel for the respective parties, we have concluded that the learned circuit judge erred in refusing to instruct the jury as requested by the appellant, and also in ren- dering judgment in favor of the respondent upon the special verdict. . . . • A porsonal juflnmont nKHin.st a non-resident defendant whose property him been attached, hut who hius not hccn jxTSdnally Hcrvcd with process within thoHtut*^ is iu)t valid. Ea-stcrly v. CJoodwin, 3o Cunii. 273; KiU'^tman v. Dear- born, 63 N. II. 304. Cotni)are Emanuel v. Synion, (190H) 1 K. li. 302. A few early C!i.se« intiniatin;; that jurisdiction over the defendant's i)roperty gives juris/jiction U) pronounce a jx-rsonal judj^Jticnt a>?airist him, have, nince the (lif'mnn in Pennoyer v. NefT, \).'i U. S. 714, 24 L. ed. 66.'), been discredited. Lauuhhn v. Ix)uisiana «t New ( )rleanH Ice Co., 35 La. Ann. 1 1H4. See lAiiiard V. Chute, 4.-J Minn. 277, 47 N. W. 967. Ah U> the efTect of a Huljs«'d, then property in Maine, Louisiana, or California, or in any foreign country, may alst) be n-ached ane Arndt v. Gri^Ks, 134 V. S. 31(;, .33 L. ed. 91S, 10 S. Ct. .5."i7; Ballard v. Huiit.-r, 2(M r. S. 241, 51 L. ed. 4(»l, 27 S. Ct. 2()1; Birmiiinham l{c:ilty Co. v. Barron, 1.'/) Ala. 2.32, 43 So. 34(»; Guis(! i-. Early, 72 la. 2S3, 33 N. W. (•)S3; Tyler v. JudKes, 175 Ma.HS. 71, 55 N. K. H12; Iti(i!e r. Welles, .'•.3 .Mimi. l'.»7, 55 N. W. 117; MeClymon.l v. Noble, H4 Miim. 329, S7 \. W. 83S, 87 Am. St. Kcp. .3.'i4; Piwr V. L«.ckw(Hid, 30 Ilun. (N. V), (5. The Htatut^)ry provisioiiH as to construetive service inust be strictly com- plied with. Correll V. Cnifi.r, 245 111. 37s, 92 N. K. ^Vti), 137 Am. St. Uep. MIEDREICH V. LAUENSTEIN 51 Section III. Return of Service. MIEDREICH V. LAUENSTEIN. Supreme Court of the United States. 1914. [Reported 232 Uniled States, 236.] Day, J.^ The plaintiff in error, by complaint filed in the Superior Court of Vanderburgh County, State of Indiana, sought to vacate a judgment of foreclosure rendered by that court in a prior case and to be permitted to redeem the property therein in- volved and prays for other relief, and, judgment having been entered in favor of the defendant in error, which was affirmed by the Supreme Court of Indiana (172 Indiana, 140), this writ of error was sued out. The facts, so far as pertinent to our review, are : The complaint, in the fourth paragraph, alleged that the plaintiff in error was the owner of certain property, subject to a mortgage foreclosed in a former suit; that she was a minor when the foreclosure proceedings were had; that she was not a resident of Vanderburgh County, where the action was brought, but was and had been for many years a resident of Gibson County, and that she was not summoned in such action, had no knowledge of its pendency, and did not waive service or enter her appearance therein. It was further alleged that the plaintiff in error was not amenable to the jurisdic- tion of the sheriff of Vanderburgh County, but that, although she was not served A\ath process, he made a false return of a pretended summons, by which the court was wrongfully imposed upon, and, being so advised, at the instance of attorneys for the predecessor of defendant in error, the court appointed a guardian ad litem for her, who answered in the suit, and that a decree was rendered, her property sold and bid in by the predecessor of the defendant in error. The demurrer of the defendant in error to this paragraph thus construed was sustained by the lower court and its decision afiirmed by the Supreme Court. Other paragraphs of the com- 327; McCracken v. Flanagan, 127 N. Y. 493, 24 Am. St. Rep. 481. As to the effect of a mistake or omission in the name of the defendant, see Fanning i;. Krapfl, 68 la. 244; D'Autremont v. Anderson Iron Co., 104 Minn. 165, IK) N. W. 357, 17 L. R. A. (x.s.), 23G, 124 Am. St. Rep. 615, 15 Ann. Cas.'ll4: Proctor V. Nance, 220 Mo. 104, 119 S. W. 409, 132 Am. St. Rep. 555. ^ A part of the opinion is omitted. — Ed. 52 PROCESS plaint alleged fraud on the part of the predecessor of the defendant in error and her attorneys. The lower court found against this charge, and the Supreme Court, after stating that there was legal evidence to sup])ort the finding, refused to disturb it. . . . The question then is, does the ruling predicated upon the prin- ciples thus stated, made in the state court wherein the party has been duly heard, amount to a denial of due process of law within the meaning of the Federal Constitution ? . . . In the present case the State has made provision for the service of process, and the original party in the foreclosure proceeding did all that the law required in the issue of and attempt to serve proc- ess; and, without fraud or collusion, the sheriff made a return to the court that service had been duly made. The duty of making such service and return by the law of the State is delegated to the sheriff, and, although contrary to the fact, in the absence of any attack upon it, the court was justified in acting upon such return as upon a true return. If the return is false the law of the State, as set forth by its Supreme Court, permitted a recovery against the sheriff upon his bond. We are of the opinion that this system of jurisprudence, with its provisions for safeguardhig the rights of litigants, is due process of law. It may result, unfortunately, as is said to be the fact in this case, that the recovery upon the sheriff's bond will not be an adequate remedy, but statutes must be framed and laws administered so as to protect as far as may be all litigants and other persons who derive rights from the judg- ments of courts. So far as this record discloses the purchaser at the sheriff's sale had a right to rely upon the record, which imported verity as to the nature of the service upon the plaintiff in error. If this were not true, as the Supreme Court of Indiana points out, there would be no protection to jiarties who have relied upon judi- cial proceedings importing verity, upon the faith of which rights have been adjudicated and value parted with. In a case of this character the law nmst have in view, not only the rights of the defendant who has been a victim of a false return on the part of the sheriff, but of persons who have reli(>d upon the regvilarity of the return of ofhciuls neiM'ssarily trusted by hiw with the responsi- bility of advising the court as to the performance of such duties as are hert; involved. Weni the law otherwise titles might be attacked numy years after they wen^ accjuired, where the party liad been K'^'l^y of no fraud and had acted updu 1 lie fait h of judicial proceedings api)arciitly perfect ui every respect. SHELDON V. COMSTOCK 53 This has been the rule of law applied to a similar situation in the courts of other States. Gregory v. Ford, 14 California, 138; Stites V. Knapp, Ga. Dec. 36, pt. 2; Taylor v. Lewis, 25 Kentucky, 400; Gardner v. Jenkins, 14 Maryland, 58; Smoot v. Judd, 184 Missouri, 508; Johnson v. Jones, 2 Nebraska, 126; Wardsboro v. Whiting- ham, 45 Vermont, 450; Preston v. Kindrick, 94 Virginia, 760. And see in this connection Walker v. Robbins, 14 How. 584, 585; Knox County V. Harshman, 133 U. S. 152, 156. Without the necessity of deciding more in the present case, it is enough to say that the decision of the Supreme Court of Indiana, made under the circumstances detailed, did not in our opinion deprive the plaintiff in error of due process of law within the mean- ing of the Fourteenth Amendment. It follows that the judgment of the Supreme Court of Indiana should be affirmed. Judgment affirmed.^ SHELDON V. COMSTOCK Supreme Court of Rhode Island. 1854. [Reported 3 Rhode Island, 84.] The writ in this action was served by attaching certain articles of personal property. The return of the officer, as originally made, set forth the attachment with the time and place, but did not state that immediately after making the attachment he left an attested copy of the writ with a copy of his doings thereon at the defendant's usual place of abode, with some person there, as is required by sec. 3 of the act entitled " an act prescribing the forms of writs and the manner of serving them." The defendant filed his motion to dismiss the action for want of service, whereupon the officer also moved the Court for liberty to * There is a considerable diversity of opinion as to how far the sheriff's return is conclusive. See Carleton v. Bickford, 13 Gray (Mass.), 591; Michela V. Stork, 52 Mich. 260, 17 N. W. 833; Smoot v. Judd, 184 Mo. 508, 83 S. W. 481; Reiger v. MuUins, 210 Mo. 563, 109 S. W. 26, 124 Am. St. Rep. 755 Goble V. Brenneman, 75 Neb. 309, 106 N. W. 440, 121 Am. St. Rep. 813 Flowers v. King, 145 N. C. 234, 58 S. E. 1074, 122 Am. St. Rep. 444 Knutson v. Davies, 51 Minn. 363, 53 N. W. 646; Alderson, Judicial Writs and Process, sees. 193-197; 32 Cyc. 514; 18 Encyc. of PI. & Pr. 965; 124 Am. St. Rep. 756. An affidavit of service by a private person is open to attack. Campbell v. Donovan, 111 Mich. 247, 69 N. W. 514; Allen v. Mclntyre. 56 Minn. 351, 57 N. W. 1060; O'Connor v. Fehx, 147 N. Y. 614, 42 N. E. 269. — Ed. 54 PROCESS amend his return, by adding to it the following words: " and have left a true and attested copy of this writ, by direction of the de- fendant, with his, defentlant's attorney, Paul Todd, in whose hanils defendant stated his affairs to be placed." The defendant contended that the return, if amended as pro- posed by the officer, would still be insufficient, and persisted in his motion to dismiss the action. Staples, C. J. Motions by officers for leave to amend their returns on mesne process are of very frequent occurrence. When made at the return term, or during the pendency of the suit, they have generally been granted, and almost as a matter of course. The leave so given is to spread on the record proper evidence of all that the officer actually did on the service of the process com- mitted to him, to correct the omissions and errors in his return. We are of the opinion that the officer's return, amended accord- ing to his motion, would still be insufficient. An officer's return on process of every kintl should state that he has performed what the mandatory part of the process required of him. It should contain a statement of the acts which he has done under and by virtue of it, and the place and the time when and where they were done. His office is simply ministerial. Hence it is insufficient for him to return that he has duly or legally served the process committed to him. He should set forth what he did, and when and where, and leave the question of the legality of his proceedings to some judicial tribunal. Where the law prescribes any particular forms or proceedings in the service of process, the return of the officer should show that they were specifically complied with. The return should set them forth as fully and circumstantially as though they had been spe- cially refjuired in the mandatory part of the process. All this should be ia the return, and as a general thing nothing more. But if more be added, although it may not vitiate the return, it will not be considered as part of it. The facts essential to a return are taken as conclusively proved, if stated in it, except in those cases where express provision to the contrary is made by statute, and except in suits against the officer making it ftjr a false return. The return of the officer is the only proper evidence to i)r()ve those facts. If (jtlicr facts an^ contaiiu-d in the return, they are to be rejected. The officer's return is no proper evidence of their tnitli. In the present case- the law re(iuire(l the oflicer making the uttachnient, inun<'' other purpose. If he goes in for any purjwse incompatible with the supposition that the court has no power or jurisdiction on account of defective service of process upon him, he goes in and suhnnts for all the purposes of personal jurisdiction \vith respect to himself, and cannot after- ward.s be heard to make the objection. It is a general appearance on his part, equivalent in its effect to proof of due personal service of process." It will be thus seen that the right to proceed to a trial on the merits after a decision against the defendant on the jurisdictional question, efficiently saving an objection to the ruling in thtit regard, is not recognized as having any place in our practice. The quoted language was only a reiteration, in effect, of what was said in Lowe V. Stringham, supra. There the doctrine which has from the start prevailiMl here, was thus plainly stated in these words: " Wc think it is also a waiver of .such a defect for the party, after making his objection, to plead and go to trial on the merits. To allow him to do this, would be to give him this advantage. After objecting that he was not projxTly in court, lie could go in, take his chance of a trial on the merits, and if it resulted in his favor, insist upon tlu^ judgment as good for hi.s lx?nefit, but if it resulted uKainst him, he coulil set it all aside upon the ground that he had never br-en properly got into court at all. If a i)arty wi.s|ie.s to iii.Mi.st upon tli(^ objection that he is not in court, he must keep out for all ])uriKjMeH except to ni.ike that objection." CORBETT V. PHYSICIANS CASUALTY ASSOCIATION 61 We recognize that there are very respectable authorities to the contrary of the foregoing, among which are the following: Hark- ness V. Hyde, 98 U. S. 476; Miner v. Francis, 3 N. Dak. 549, 58 N. W. 343, 2 Ency. PI. & Pr. 629, 630, and note 1. However, it is believed that the great weight of authority, or at least the better reasoning, is the other way. These are but a few of the many cases that might be cited in support of that: In re Clarke, 125 Cal. 388, 392, 58 Pac. 22; Manhard v. Schott, 37 Mich. 234; Stevens v. Harris, 99 Mich. 230, 58 N. W. 230; Union Pac. R. Co. v. De Busk, 12 Colo. 294, 20 Pac. 752; Lord v. Hendrie & B. Mfg. Co., 13 Colo. 393, 22 Pac. 782; Ruby Chief M. & M. Co. v. Gurley, 17 Colo. 199, 29 Pac. 668; Stephens v. Bradley, 24 Fla. 201, 3 South. 415; Thayer V. Dove, 8 Blackf. 567; Kronski v. Mo. Pac. R. Co., 77 Mo. 362. . . . By the Court. — The judgment is affirmed. A motion for a re- hearing was denied May 8, 1908.^ ^ For conflicting decisions on the question involved in the principal case see 3 Cyc. 525; 2 Encyc. of PI. & Pr. 629; 16 L. R. A. (n. s.), 177. In Harkness v. Hyde, 98 U. S. 476, 25 L. ed. 237, the court said (p. 479) : " The right of the defendant to insist upon the objection to the illegality of the service was not waived by the special appearance of counsel for him to move the dismissal of the action on that ground, or what we consider as in- tended, that the service be set aside; nor, when that motion was overruled, by their answering for him to the merits of the action. IllegaUty in a pro- ceeding by which jurisdiction is to be obtained is in no case waived by the appearance of the defendant for the purpose of caUing the attention of the court to such irregularity; nor is the objection waived when being urged it is overruled, and the defendant is thereby compelled to answer. He is not to be considered as abandoning his objection because he does not submit to further proceedings without contestation. It is only where he pleads to the merits in the first instance, without insisting upon the illegaUty, that the objection is deemed to be waived." If the defendant is arrested and he enters a special appearance and imsuccessfully denies the jurisdiction of the court over his person, and after- wards pleads to the merits, he does not thereby waive the question of juris- diction. Warren v. Crane, 50 Mich. 300, 15 N. W. 465. If the defendant enters a special appearance and unsuccessfully denies the jurisdiction of the court over his person, and afterwards files a cross-complaint demanding affirmative relief, he thereby waives the question of jurisdiction. Chandler v. Citizens National Bank, 149 Ind. 601, 49 N. E. 579; Linton v. Heye, 69 Neb. 450, 95 N. W. 1040, HI Am. St. Rep. 556; Austin Manufactur- ing Co. V. Hunter, 16 Okl. 86, 86 Pac. 293. — Ed. 62 APPEARANCE GODFREY V. VALENTINE. Supreme Court of Minnesota. 1888. [Reported 39 Minnesota, 336.] Appeal by defendant from an order of the district court for Ram- sey county, Bhill, J., pre.sidinfi, donyins his motion to set aside a judgment, (among other grounds for want of jurisdiction), and for leave to answer. Dickinson, J. This is an appeal by the defendant from an order denying a motion to set asiile a juilgment entered against him in the district court, in August, 1883, the defendant never having ap- jieared in the action. The motion raised the question of the juris- chction of the court. After proper proof of tlie non-residence of the defendant, and of want of knowledge as to his place of residence, the summons was published in the St. Paul Daily Glol)e, and, upon prooi ijy affidavit of such ])ul)lication, and of the defendant's de- fault, the cause was brought to hearing and judgment. The asserted jurisdictional defect is that the summons was not published '' once in each week " for six consecutive weeks, as prescribed by the statute. The affidavit of i)ublication, embraced in the judg- ment-roll, states that the summons was published in the St. Paul Daily Globe " for the period of six successive weeks, conunencing on the 23d day of June, 1883, on which day last mentioned it was first published, and ending on the 4th day of August, 1883, on which day last mentioned it was last published. . . ." This affidavit is referred to in the judgment itself as the proof of service upon whifh the court entertained jurisdiction. The statute pro- vides that j)roof of service by publication shall be made by affi- davit, (Gen. St. 1878, c. 66, §68), and (in case the judgment is up N. W. Rep. 7H:i); (lalijin ;'. l*ag<', IS Wall. 3.')(). Following the decision.s in rilrnan / . I.ion, S Minn. ;i3S, (381 ), and G(jlcher /'. Uri-bin, 2f) Minn. 107, ( l.')3j, we must hold t his aflida\it GODFREY V. VALENTINE 63 of publication insufficient to show a publication " once in each week " for the prescribed period. This conclusion is also sustained by Hernandez v. Creditors, 57 Cal. 333. The respondent relies in support of the judgment upon the rule declared in Curtis v. Jackson, 23 Minn. 2G8, to the effect that the appearance by a party, unless limited to mere jurisdictional ques- tions, cures a want of jurisdiction as to a judgment previously rendered. The propriety of that rule with respect to an appear- ance after judgment, and for the purpose of securing reHef from the judgment, was doubted in Kanne v. Minn. & St. Louis Ry. Co., 33 Minn. 419, 421, (23 N. W. Rep. 854). The doctrine of Curtis v. Jackson, to the full extent expressed in that decision, cannot, we are satisfied, be sustained upon principle. Upon an application to set aside a judgment shown to have been absolutely void because the court had acquired no jurisdiction in the cause, an objection distinctly made upon that ground should not be deemed to have been at the same time waived from the fact that the moving party also urges in support of his application additional reasons not in- consistent with the alleged want of jurisdiction, nor because, by asking to be allowed to file an answer as in a pending cause, he indicates his present willingness to submit himself to the jurisdic- tion of the court, in order that, after a hearing upon the issues thus presented, the court may proceed to judgment. The course of the moving party in thus seeking to have a void judgment set aside, — to which relief he is entitled as a matter of right, — but at the same time consenting and asking that the court shall now hear and adjudicate upon the cause, may justify the court in entertaining the cause and proceeding as in an action pending in which the de- fendant has voluntarily appeared. But in thus urging his legal right, and thus invoking and consenting to the future action of the court, the moving party should not be deemed to have conferred jurisdiction retrospectively, so as to render valid the previous judg- ment, which, being unsupported by any authorized judicial pro- ceedings, was not merely voidable, but void, and in legal effect a nullity. Gray v. Hawes, 8 Cal. 562; Shaw v. Rowland, 32 Kan. 154, (4 Pac. Rep. 146); Boals v. Shules, 29 Iowa, 507; Briggs v. Sneghan, 45 Ind. 14; State v. Cohen, 13 S. C. 198; Moore v. Wat- kins, 1 Ark. 268. Order reversed.^ 1 See Simensen v. Simonsen, 13 N. D. 305, 100 N. W. 70S. But see Mars- den V. Soper, 11 Oh. St. 503; Henry v. Henry, 15 S. D. 80, 87 N. W. 522. Intervening rights of third persons at any rate will not be cut oflf. Ander- son V. Coburn, 27 Wis. 558. — Ed. 64 APPEAR-VN'CE YORK r. TEXAS. Supreme Court of the United States. 1890. (Reporteil 137 United States, 15.] On the 14th day of November, 1888, a personal judgment was rendered in the District Court of Travis County, Texas, against the plaintitT in error, which judgment was subsequently affirmed by the Supreme Court of the State. Error is now alleged in this, that the District Court had no jurisdiction of the person of the defend- ant. The record discloses that on October 20, 1885, the defendant leased from the State certain school lands, at a stipulated rental. The lease provided that in all suits thereunder the venue should be laid in Travis County, Texas. The State filed its petition on February 15, 1888, alleging non-payment of the rent due in 1886 and 1887. The defendant being a non-resident, a citizen of St. Louis, Missouri, a notice in accordance with tlie provisions of the statute was served upon him personally in that city. No question is made but that the service was in strict conformity with the letter of the statute. On March 9, 1888, the defendant appeared by his counsel and filed a special plea, challenging the jurisdiction of the court, on the ground that he was a non-resident and had not been served personally \\ith process within the limits of the State. This plea was overruled. Thereafter, and on the 5th day of October, 1888, the defendant appeared by his attorneys in open court, de- manded a ']ury, paid the jury fee, and had the cause transferred to the jury docket. On the Gth day of October he again filed a plea to the jurisdiction, on the same ground, which was also overruled. On the 14th day of November, when the cause was reached and called for trial, he again appeared by his attorneys, waived his right of trial by a jury and his demand of a jury, and declined to further answer to the caus(! — relying solely upon his plea to the jurisdic- tion. The c(Hirt thereupon proceeded to render judgment against him, which, as heretofore stated, was aflirmed b\' the Supreme ( "ourt. 73 Texas, 051. HuEWEit, J. It was conceded by the District and the Supreme Courts that the service upon the defendant in St. Louis wjis a nul- lity, and gave the District Court no jurisdiction; but it was held that, under the peciiMar statutes of the State of Texas, the appear- ance for the purpose; of pleading to the jurischction was a vohmtary appearance, which brought the defendant into court. Plaintiff in error (jueHtion-s this construction of tlu; Texiis statutes; but, inas- YORK V. TEXAS 65 much as the Supreme Court, the highest court of the State, has so construed them, such construction must be accepted here as cor- rect, and the only question we can consider is, as to the power of the State in respect thereto. It must be conceded that such statutes contravene the estab- lished rule elsewhere — a rule which also obtained in Texas at an earlier day, to wit, that an appearance which, as expressed, is solely to challenge the jurisdiction, is not a general appearance in the cause, and does not waive the illegality of the service or submit the party to the jurisdiction of the court. Harkness v. Hyde, 98 U. S. 476; Raquet v. Nixon, Dallam (Texas), 386; De Witt v. Monroe, 20 Texas, 289; Hagood v. Dial, 43 Texas, 625; Robinson V. Schmidt, 48 Texas, 19. The difference between the present rule in Texas and elsewhere is simply this: Elsewhere the defendant may obtain the judgment of the court upon the sufficiency of the service, without submitting himself to its jurisdiction. In Texas, by its statute, if he asks the court to determine any question, even that of ser\'ice, he submits himself wholly to its jurisdiction. Elsewhere, he gets an opinion of the court before deciding on his own action. In Texas, he takes all the risk himself. If the service be in fact insufficient, all sub- sequent proceedings, including the formal entry of judgment, are void; if sufficient, they are valid. And the question is, whether under the Constitution of the United States the defendant has an inviolable right to have this question of the sufficiency of the ser- vice decided in the first instance and alone. The Fourteenth Amendment is relied upon as invalidating such legislation. That forbids a State to " deprive any person of life, liberty or property, without due process of law." And the propo- sition is, that the denial of a right to be heard before judgment simply as to the sufiiciency of the service operates to deprive the defendant of liberty or property. But the mere entry of a judg- ment for money, which is void for want of proper service, touches neither. It is only when process is issued thereon or the judgment is sought to be enforced that liberty or property is in present dan- ger. If at that time of immediate attack protection is afforded, the substantial guarantee of the amendment is preserved, and there is no just cause of complaint. The State has full power over reme- dies and procedure in its own courts, and can make any order it pleases in respect thereto, provided that substance of right is secured Avithout unreasonable burden to parties and litigants. Antoni v. Greenhow, 107 U. S. 769. It certainly is more conven- 66 APPEARANCE ient that a defendant be permitted to object to the service, and raise the question of jurisdiction, in the first instance, in the court in which suit is pending. But mere convenience is not substance of right. If the defendant had taken no notice of this suit, and judgment had been formally entered upon such insufficient service, and uulKt process thereon his property, real or personal, had been seized or threatened with seizure, he could by original action have enjoined the process and protected the possession of his property. If the judgment had been pleaded as defensive to any action brought by him, he would have been free to deny its validity. There is nothing in the ojMnion of tiie Supreme Court or in any of the statutes of the State, of which we have been advised, gainsay- ing this right. Can it be held, therefore, that legislation simply forbidding the defendant to come into court and challenge the validity of service upon him in a personal action, without surren- dering himself to the jurisdiction of the court, but which does not attempt to restrain him from fully protecting his person, his prop- erty and his rights against any attempt to enforce a judgment rendered without due service of process, and therefore void, de- prives him of liberty or property, within the prohibition of the Fourteenth Amenchnent ? We think not. The judgment is affirmed.^ Mr. Justice Bradley and Mr. Justice Gray dissented. CREIGHTON v. KERR et al Supreme Court of Colorado Territory. 1872. [Reported 1 Colorado, 509.] Suit commenced by attachment to the June term, 1870; amount specified in th(! affidavit §5, 503. ,'>(). Cause of action in the affidavit, for telegraph poles and labor and material furnished by tin; jjiain- tiffs to defendant. The declaration contained the common counts for W(jrk and !al)or, for telcgrajiii j)oles, goods, wares and mer- fhandi.se, for money paid, laid out and expended, and a count upon an account stated; the damages were laid at S8,()()0. ' 'I'lif Htatiitc \vlii. «•. i^. Aiu'Tican Malleahli- Iron Co., 127 I'eii. 1008. — Ed. CREIGHTON V. KERR 67 At the October term, 1870, the defendant appeared by Charles & Elbert, his attorneys, and submitted to a rule to plead within ten days. Afterward, and before the expiration of the ten days, an order was entered of record in the cause, as follows : " Now on this day came Messrs. Charles & Elbert, and with- drew their appearance as attorneys for the said defendant, with- out prejudice to the plaintiffs." Afterward, and at the same term, the plaintiffs obtained judg- ment against the defendant for $8,000 and costs. Wells, J. It appears to us that the withdrawal of the appear- ance which was entered on the part of the plaintiff in error in the court below, whether it be regarded as the act of the attorneys merely or as the act of the defendant himself, left the plaintiffs below in precisely the same position as if it had not been withdrawn or in any manner qualified. If we are to give any effect to the words of the record of this proceeding, they impart a stipulation by the defendant, or at least a condition imposed by the court, that the plaintiffs shall not lose any advantage which, by reason of the appearance, they had gained. The appearance, to all intents and purposes, still stood as a waiver of process, and suf- ficiently supported the judgment nil dicit, which was afterward given. And this, we think, also disposes of the second question which is presented by counsel, for, if we consider the appearance which was interposed on behalf of the defendant, as still so far subsisting as to waive the necessity of process; if the plaintiffs, notwithstanding the withdrawal of the defendant's attorneys, still maintained their advantage in this respect, it follows that there was still an appear- ance subsisting on behalf of defendant for all purposes where such appearance could afford the plaintiff any advantage. Therefore, the attachment which, in the first instance, was but a proceeding in rem, and which, by the defendant's appearance, had assumed the character of an action in personam, still remained of the same character after the appearance was withdrawn, and the plaintiffs were still entitled to have judgment for whatever damages they might estabhsh under their declaration within the limit of the ad damnum laid therein, whether the causes of action counted upon were the same as those mentioned in the affidavit or different. The position of the plaintiffs was the same as if the defendant had plead to the action and the issue had been tried by a jury; and, in such cases, it has uniformly, we believe, been held 68 APPEAR.VNCE that the plaintiff's recovery is not limited to the amount or causes of action specified in tlie affidavit. We see no error in the record. The judgment of the court below is, therefore, affirmed. Affirmed} McMIXN V. HAMILTON, Administrator. Supreme Court of North Carolina. 1877. [Reported 77 North Carolina, 300.] Appeal from an Order dismissing the Action, made at Spring Term, 1877, of Transylvania Superior Court, by Henry, J. From the case agreed and the record, the following facts appear: The plaintiff brought an action against the defendant in his repre- sentative character for S70.35 before a Justice of the Peace in said County where both parties reside. The defendant ol)tained letters of administration and filed his official bond in Henderson County. The defendant appeared before the Justice and pleaded payment and statute of limitations. Evidence was heard and judgment was rendered for the plaintiff, from which the defendant appealed. In the Superior Court he filed a demurrer, not to the jurisdiction, but on other grounds; and made a motion at the same term to dis- miss the action for want of jurisdiction. The plaintiff declined to remove the ca.se by consent and His Honor dismissed the action. From which order the plaintiff appealed. Fairclotii, J. (After stating the facts as above.) Where a Court has no jurisdicticm of the subject matter, the objection can be taken at any time, and indeed as soon as tiiis fact is discovered the Court mero motu will take notice of it and dismiss the action. But if it has jurisdiction of the sul)ject matter and the venue is wrong, the (objection must be taken in apt time; and if the defend- ant pleads to the merits of the action, he will lie taken to have waived the (jbjection. He cannot have two chances. Api'h'ing this principle to the case before us, we think the defendant waived the objection !)>' pleading:; licfoiv the Justice and that it was then t(jo late to raise if. I'>ror. Per (' r lu a m . Judgment reversed.^ > Hoe TUi' Dupl«>ix, (1912] P. H; FilzKcnild Con.Mt. Co. v. FitzKcruld, 137 U. S. 98, 34 L. <n lluit llif .'ictinn w.is Nrimt^lil in tho CONSTRUCTION AND IMPROVEMENT CO. V. GIBNEY 69 INTERIOR CONSTRUCTION AND IMPROVEMENT COMPANY V. GIBNEY. Supreme Court of the United States. 1895. [Reported 160 United States, 217.] This was an action at law, brought June 9, 1890, in the Circuit Court of the United States for the District of Indiana, by the In- terior Construction and Improvement Company against John C. Gibney and Harvey Hartley, copartners under the name of J. C. Gibney and Company, and James B. McElwaine and James B. Wheeler, upon a bond, by which " J. C. Gibney & Co., as principals, and J. B. McElwaine and J. B. Wheeler, as sureties, are holden and firmly bound," jointly and severally, to the plaintiff, in the sum of $20,000, for the performance of a contract made by " said J. C. Gibney & Co." with the plaintiff. The complaint alleged that the plaintiff was incorporated under the laws of the State of New Jersey, and was a citizen thereof; and that all the defendants were citizens and residents of the State of Indiana. On June 19, 1890, the defendants Gibney, McElwaine and Wheeler, by their attorney, entered a general appearance. But Gibney never pleaded or answered; and the defendant Bartley never appeared, or made any defence. On September 19, 1891, McElwaine and Wheeler pleaded in abatement that at the time of the bringing of this action, and ever since, Gibney and Bartley were citizens of the State of Pennsyl- vania, and not citizens or residents of the State of Indiana; and that, therefore, the court had no jurisdiction of the case. The plaintiff demurred to this plea, as not containing facts suffi- cient to constitute a cause for the abatement of the action. The plaintiff declining to plead further, but electing to stand upon its wrong county or district was hold to be waived : Woolf v. McGaugh, 175 Ala. 299, 57 So. 754; Eel River R. R. Co. v. State, 143 Ind. 231, 42 N. E. 617; Gillen v. 111. Cent. Ry. Co., 137 Ky. 375, 125 S. W. 1047; Webb v. Goddard, 46 Mc. 505; Murphy v. Merrill, 12 Cush. (Mass.) 284; Putnam v. Bond, 102 Mass. 370; Norberg v. Heineman, 59 Mich. 210, 26 N. W. 481; Bishop v. Silver Lake Mining Co., 62 N. H. 455; Blackford v. Lehigh Valley Ry. Co., 53 N. J. L. 56, 20 Atl. 735; Bunker v. Langs, 76 Hun (N. Y.), 543, 28 N. Y. Supp. 210; Sentenis i-. Ladew, 140 N. Y. 463, 35 N. E. 650, 37 Am. St. Rep. 569; Fennell i-. Guffey, 155 Pa. 38, 25 Atl. 785; De la Vega i-. League, 64 Tex. 205. — Ed. 70 APPEARANCE demurrer to the plea, the court adjudged .that the plaintiff take nothing by its action, and that the defendant recover costs. The plaintiff thereu])on presented a petition for the allowance of a wTit of error " for the review of the judgment heretofore ren- dered therein in favor of the defendants and against the plaintiff, therein holchng antl deciding that this court has no jurisdiction of said action; " and assigned, as errors, that the Circuit Court erred, 1st, in overruling the plaintiff's demurrer to the plea in abatement ; 2il, in sustaining the pk'a in al)atement, and holding that the court had no jurisdiction of the cause; 3d, in entering judgment in favor of the defendants and against the plaintiff on the plea in abatement, and dismissing and quasiiing the proceedings. The writ of error was thereupon allowed by the jutlge presiding in the Circuit Court. Gr.\y, J.^ . . . The act of March 3, 1887, c. 373, as corrected by the act of August 13, 1888, c. 8G6, confers upon the Circuit Courts of the United States original jurisdiction of all civil actions, at common law or in equity, between citizens of different States, in which the matter in dispute exceeds, exclusive of in- terest and costs, the simi or value of $2000; and provides that " where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant." 24 Stat. 552; 25 Stat. 433. The Circuit Courts of the United States are thus vested with general jurisdiction of civil actions, involving the requisite pecu- niary value, between citizens of different States. Diversity of citizenship is a contlition of jurisdiction, and, when that does not appear upon the record, the court, of its own motion, will order the action to be dismis.sed. But the provision as to the jjarticular dis- trict in which the action shall be l)rought dcjes not touch tiie general jurisdiction of the court over such a cause between such parties; but affects only tlu? proceedings taken to bring the defendant witliin such jurisdiction, and is a matter of personal privilege, which the defendant may insist upon, or may waive, at his election; and the defendant's right to object that an action, witliin the gen- eral jurisdiction of tiie court, is brought in the wrong district, is waived by entering a general appearance, without taking the (jbjcction. Cracic; v. Palmer, H Wheat. ()!)!>; Toland r. Sprague, 12 Pet. 3(K), 330; Ex jxirir Sciiollenberger. \)(\ V. S. 3(i<>, 37S; St. Louis & San Francisco Kailway v. McHride, 111 I . S. 127; South- ' ;\ ji.'irt of flic (ii)iriiiin is omitted. — - Kd. WHEELOCK V. LEE 71 em Pacific Co. v. Denton, 146 U. S. 202, 206; Texas & Pacific Rail- way V. Saunders, 151 U. S. 105; Central Trust Co. v. McGeorge, 151 U. S. 129; Southern Express Co. v. Todd, 12 U. S. App. 351. . . . Judgment reversed, and case remanded with directions to sustain the demurrer to the plea, and for further proceedings not inconsist- ent with this opinion. ^ WHEELOCK, Assignee, etc. v. LEE. Court of Appeals of New York. 1878. [Reported 74 New York, 495.] Rapallo, J.^ The defendant set up in his answer that the plain- tiff's cause of action, if any, did not arise in the city of Brooklyn but in the city of New York. That at the time of the commence- ment of this action the defendant did not reside in the city of Brook- lyn, that he never resided or had a place of business there, and that the summons was served in the city of New York and not in the city of Brooktyn and that consequently the City Court of Brook- lyn had no jurisdiction of the person of the defendant or of the action. These allegations are substantiated by the evidence and findings, and it is conceded that they establish a want of jurisdic- tion in the city court and a fatal objection to the judgment, unless such objection has been waived or cured. This question was not passed upon nor did it arise when this case was before us on the first appeal. The facts upon which the objection is based were not in the case, the court below having excluded proof of them. A new trial was ordered on other excep- tions. The defendant, by putting in a general appearance, fol- lowed by an answer setting up the want of jurisdiction, did not waive that defense. This was expressly decided in the case of Landers v. Staten Island Railroad Co., 53 N. Y. 450, 460. The prevailing opinion in that case sets forth fully the grounds upon which it was held that the city court was without jurisdiction. They are in substance that the city court was a local court of limited jurisdiction at the time of the adoption of the judiciary article of the State Constitution in 1869 and that it was continued 1 See In re Moore, 209 U. S. 490, 52 L. ed. 904, 28 S. Ct. 706. 14 Ann. Cas. 1164; Ingersoll v. Coram, 211 U. 8. 335, 53 L. cd. 208, 29 S. Ct. 92. — Ed. 2 The statement of facts and a part of the opinion are omitted. — Ed. 72 APPEARANCE as such and it was even beyond the power of the Legislature to divest it of its local character. That its jurisdiction was limited to cases in which the cause of action arose within its territorial limits, and cases in which the subject of the action was situated, or the party proceedetl against resided, or was served with process, within those hniits. That some one or more of these elements of locahty must exist to confer ui)on tiie court jurisdiction of the cause. It follows that where none of them exists, a mere appear- ance does not preclude the defemlant from taking the objection. Where no other ground of jurisdiction exists, the service within the county is a jurisdictional fact. Its omission is not cured by an appearance, for the objection is not simply that the court has not jurisdiction of the person of the defendant, but that it has not juris- diction of the cause. Burckle v. Eckhart, 3 Comst. 132. In a case in which the court had juristliction of the cause on some of the other grounds, as, for instance, where the cause of action arose within the city of Brooklyn, the general rule would ajiply, that a general appearance cures any defcH't in the service of process to bring the defendant into court, and even the total absence of any service. But where, as in this case, the only element of locality which can exist, and the only means by which the cause can be brought within the jurisdiction of the court as a local court, is the service of the summons within a certain territory, that rule is not apphcable. But the point having been expressly adjudged it is not necessary to pursue it farther. . . . All concur, except Miller and Earl, JJ., absent. J ud(jineni reversed} P..\YLEY and Another v. BUCKLAND and Others. Court of Exchequer. 1847. [Reported 1 Exchequer, \.] RoLFE, B.^ We took time to consider this case, in order that we might determine what rule it might be i)roper to lay down as a ' i\n Ui the effect of :i k'IktiiI jippearance upon jurisdiction of the Hubject of the uction, 8ce Diivis v. I'ackurd, 7 Pet. (U.S.), 276; Continj-ntiil Ins. Co. V. KhoudH, 119 U. S. Xil, 30 L. ed. 3H(), 7 S. Ct. 193; Gernmn Shv. tfe L. Soc. V. Dereintzer, 192 U. S. Vl^i, 4H L. ed. 221, 24 «. Ct. 221; Murphy v. People, 2^21 III. 127, 77 N. Iv AM); Dudley v. MuvIkw, 3 N. Y. 9; DiividshurKh v. Kiiiekirl»i)fk \\\v. father, he was entitle(| to th(.' action, and not tiie present plaintiff, the son.' Thv first obje<"ti<»n merits some consideration. It is un(l()ul)t('dly true, that when' there is a special agreement relative to tlu' per- formance of work and labour, tiie declaration ought to state that agreement; in order that the ilefendant ni;i\' l)c .'ippri/eil of tin; ' Thf part of the opinion in wlndi il \\:lh licld tli;it tlir .second (»l)jr(aion wjuh not vuli'l ' '.M,.. HEFNER V. FIDLER 85 contract he is charged with breaking, and may have opportunity to shew the want of performance, on the part of the plaintiff, of those stipulations, which may have been the foundation or con- sideration of the promise made by the defendant. But where there has been a special agreement, the terms of which have been performed, so that nothing remains but a mere duty to pay money, there seems to l)e no reason why a general count should not be sufficient for the recovery of the sum due. . . . Judgment on the verdict.^ WALKER V. JONES. Court of Exchequer. 1834. [Reported 2 Crompton & Meeson, 672.) In this case, which was an action of detinue, the defendant pleaded a plea traversing the delivery; to which there was a de- murrer. On the demurrer being called on for argument, Comyn stated, that the plea had been drawn from a precedent in Chitty, 3 Chit., 4th ed., 1028; but that, after the case of Gled- stane v. Hewitt, 1 C. & J. 565, from which it appeared that the bailment in detinue was immaterial, he could not support the plea. The plea was ultimately struck out on payment of costs. HEFNER et al. v. FIDLER. Supreme Court of Appeals of West Virginia. 1905. [Reported 58 West Virginia, 159.] Sanders, J. This is an action of detinue, instituted before a justice of the peace of Gilmer county, for the recovery of the pos- session of two certain promissory notes of $62.50 each. Upon the trial of the case, both before the justice and upon appeal to the circuit court, judgment was rendered in favor of the plaintiffs, and to this judgment a writ of error and supersedeas has been allowed. The defendants sold to the plaintiffs one four-horse power engine and boiler, for the sum of $125.00, to be paid in two equal pay- ments of $62.50 each, for which they executed the said two notes. The plaintiffs claim that shortly after the consummation of the * For the scope of the action of assumpsit, general and special, see 1 Chitty, Pleading, 16th Am. ed., *110. For the history of the action see Ames, Lectures on Legal History, 129-171; 2 Harv. L. Rev. 1, 53. — Ed. 86 FORMS OF ACTION trade, by the execution of the notes and deliver}' of the engine and boiler, they discovered that the defendant had knoNnngly made false and frainlulent representations to them in regard to said engine and boiler for the purpose of misleading and deceiving them, and which did mislead and deceive them, to their prejudice, and for which they claim they are entitled to rescind the contract; and to this end they offered to return the engine and boiler to de- fendant, and demanded possession of the notes, and defendant claimed tiiat he had assigned the notes away, and could not comply with their offer. The first question that confronts us, is, does the action of detinue lie ? In order to ground the action, these points are necessary: (1) the plaintiff must have property in the thing sought to be re- covered; (2) he must have the right to its immediate possession; (3) it must be capable of identification; (4) it is essential that the property be of some value; and (5) the defendant must have had possession at some time before the institution of the action. The authorities universally hold that the action of detinue will lie to recover the possession of a promissory note. Some of these are: 1 Barton's Law Pr. 214; 1 Chitty PI. (11 Ed.) 121; Cooper v. iMastin, 73 Ala. 252; Rob v. Cherry, 98 Tenn. 72 (38 S. W. 412); Lewis V. Horner, 24 Ky. 500; 19 Am. Dec. 120; Robinson v. Peter- .son, 40 111. App. 132; Carter v. Turner, 37 Tenn. 178. But while this action ^vill lie to recover the possession of a prom- issory note, yet one, to maintain it, must bring himself within the rule herein stated. As we have seen, the plaintiff must have property in the thing sought to be recovered, and it must be of some value. Then, the pertinent inquiry is, what property have the plaintiffs in the notes sought to be recovered, and what is their value ? When recovered by the i)laiiililTs, they are of no value to them; it could only be the possession by them of evidence of out- standing indebtedness. If the theory of th(^ plaintiffs is correct, that they have the right to rescind, and have rcscimled, the con- tract, the notes are also of no value to the defendant, he having lost the right to recover on tlicm. If, however, he has not lost the right to recover, he would be in tlu; lawful possession of them, and the plaintiffs' action could not, for that reason, bo maintained. The pluintiffs arc dcjjfivcd of nothing of value to them by reason to, in Sinith'H Li-jidiiiK Ciwcs, (ith (mI., 42.'j; yth Arn. (hI., 74.'); Ijcarno v. Hruy, 3 Kiwt, .'i'.C}; 1 Cliitly, ri(!i or bail(-'e, in selling to tlu; defendants, did, ipso fdcto, determine his right, and revive th(; right of the plaint ilf to iiimiediate possession. If so, the plaintiff may maintain this action. It may be well to inquire what acts will determine a bailment of this character. It is certain the act of a mere stranger will not oixTatc; to revive tin* i)laintiff's right to immediate possession. Any misuse or abuse of the thiiiL' bailcil, ill the particular use for which the bailment wjus OXLEY V. WATTS 91 made, will not enable the general owner to maintain trespass or trover against the bailee. His only remedy is case. But if the thing be put to a different use from that for which it was bailed, by the consent of the bailee, we think the bailor may maintain trespass or trover. It has been long settled that if the bailee kill or destroy the thing bailed, trespass or trover will lie. Coke's In. a. 53. It was early held, too, that the interest of the tenant in standing trees was so far determined by their being severed from the freehold, that the landlord might maintain trespass. In the case of Farrant v. Thompson, 5 Barn. & Aid. 826, found in the 7th Com. Law R. it was held that machinery, leased and by the lessee severed from the freehold, became instanter re-vested in the lessor, and he might maintain trover even during the continu- ance of the term. The case is expressly put by the court upon the ground, that the lessee, by his wrongful act, forfeits his right, and thus " puts an end to his qualified possession," If so in that case, much more in this, where the bailee sells the property. The same doctrine here decided is held- in the case of Sanborn v. Coleman, 6 N. H. R. 14. The judgment of the County Court is reversed and a new trial granted.^ OXLEY V. WATTS. King's Bench. 1785. [Reported 1 Term Reports, 12.] This was an action of trespass for taking a horse, tried before Lord Mansfield, at the last Summer Assizes, at Maidstone. The defendant, as bailiff of Lord Dartmouth, lord of the manor of A. justified taking the said horse as an estray. Replication, that after the taking mentioned in the declaration, 1 As to the right to bring trover, see Gordon v. Harper, 7 T. R. 9; Bryant V. Wardell, 2 Exch. 479; Ames v. Palmer, 42 Me. 197; United Shoe Machin- ery Co. V. Holt, 185 Mass. 97, 69 N. E. 1056. See also 1 Chitty, Pleading, 16th Am. ed., *163; Ames, Lectures on Legal History, 80. As to the right to bring tresjiass, see Lotan v. Cross, 2 Camp. 464; Ward i". Macauley, 4 T. R. 489; Forbes v. Parker, 16 Pick. (Mass.), 462; Gay v. Smith, 38 N. H. 171. See also 1 Chitty, Pleading, 16th Am. ed., *188; Ames, Lec- tures on Legal History, 56. — Ed. 92 FORMS OF ACTION the defendant worked the said horse, and so became a trespasser ab initio. Erskine now moved to set a^ide the verdict which had been ob- tained by the plaintiff, on the ground that this should have been an action on the case for the consequential damage, and not an action of trespass, because the original taking was admitted to be lawful. But per Curiam, The subsequent usage is an aggravation of the trespass in taking the horse; for the using made him a trespasser ab initio. Rule refused.^ GALLOWAY v. BIRD and Another. Court of Common Pleas. 1827. [Reported 4 Bingham, 299.] Replevin for taking and unjustly detaining Plaintiff's goods. The goods had been delivered by one Bache to the Defemlants, who were carriers and lightermen, consigned to the Plaintiff, and the Defendants refused to deliver the goods to the Plaintiff.^ Best, C. J., now delivered the judgment of the Court. This was an action of replevin, but the goods which were replevied had been delivered to the avowants upon a contract. The authorities all lay it down that replevin can only be maintained where goods are taken, not where they are delivered upon a contract; and this is clear also upon the form of pleading, which always is that the defendant " took and detained " the goods; the plea to which allegation is, non cepit. No instance can be found in the Digests or Aljridgments of replevin having been brought upon a delivery under a c(^nlract. Our judgment therefore must be for the De- fendants. Judgment for the Defendants accordingly.^ ' See The Six Carpenters' Ca.se, 8 Co. IKWi, ami the notes thereto in Sinitli's IveadinR Ca.se8, 9th Am. wl., 'iG.*). — Eu. ' The Htat(rinent of facts is abridnetl. — Ku. ' \V(Kjdward v. Grand Trunk Ry. Co., 4(5 N. H. .'524, accord. Haki-r r. Fales, ir, .Mjwh. 147; StoUKhton v. Rapi)allo, li Serj?. & R. (Pa.), .'i.'")*). ronlm. hv statute in many stat^-s the aetion of n-plc-vin has Ix'en extended to cover wronnful detention. Se<' Hiirraj^e v. .Mel.son, IS Miss. 2.'i7; Kittredge y. Holt, 55 N. 11. tJJl ; Ames, Lectures ou Legal History, 7U. - Lu. MITCHELL V. ROBERTS 93 MITCHELL V. ROBERTS. Supreme Judicial Court of New Hampshire. 1871. [Reported 50 New Hampshire, 486.] Replevin, by Grenville A. Mitchell & a. against Moses Roberts, for one horse, sleigh, harness, whip, and buffalo robe. Plea, non cepit, with a brief statement setting forth a seizure of the property by one Willis, a deputy sheriff, upon an execution in favor of the defendant against one Gordon; an advertisement of it to be sold at auction by the officer, and the taking it out of his possession on the day appointed for the sale by virtue of this writ of replevin, by means of which the sale was prevented; and alleging that the goods were the property of said Gordon, or Gordon & Mitchell, and not of the plaintiff. Upon the trial by the court, it appeared that upon an execution issued on a judgment in favor of said Roberts against said Gordon, this property was seized by said deputy sheriff as the property of said Gordon, at a hotel where it then was, and that he duly adver- tised it for sale by auction; that the sale was t^vice adjourned, the property in the mean time being kept at said hotel stable, under the control of the officer, and that it was taken from his custody by virtue of this writ of reple\'in, on the day appointed for the sale, and before the time fixed for it. It appeared, also, that the defendant directed the officer to seize the property upon the execution, and that at the time it was re- plevied it was in the custody of the deputy sheriff under said exe- cution. Upon this evidence, the court found that the defendant did not take said goods and chattels, or any part thereof, in manner and form as the plaintiff in his declaration had alleged; to which finding the plaintiff excepted. Foster, J. The case finds that the property was taken by a deputy sheriff upon an execution in favor of the defendant against one Gordon, and that, until taken from his custody by virtue of the writ of replevin, the property remained under the officer's con- trol. The defendant never had actual possession of the property, nor constructive possession, unless the officer is to be regarded as his agent, he having been directed by the defendant to seize the property upon the execution. Replevin is strictly a possessory action: that is, as expressed by Blackstone, 2 Com. 198, " such wherein the right of possession only, and not of property, is contested." And it lies only in behalf of one 94 FORMS OF ACTION entitled to possession, against one having, at the time the suit is begun, actual or constructive possession anil control of the property. Brockway i\ Burnap, 12 Barb. 347; King v. Orser, 4 Duer 431; Roberts r. Randel, 3 Sanclf. 707; Knapp r. Smith, 27 N. Y. 281; Richardson r. Reed, 4 Gray 442; Coffin v. Gephart, 18 Iowa 256. It is a proceeding in rem, wherein the plaintiff seeks to recover the thing detained in specie, and not, as in trespass or trover, damages for its detention. The actual possession of the officer is not the constructive pos- session of the defendant, although the execution in the officer's hands was levied upon this property Iw the direction of the de- fendant ; but, until the property passed out of the officer's control by sale upon the execution or other legal means, it remained in the custody of the law, and in no way subject to the defendant's con- trol, who, by virtue of his judgment and execution, acquired no title whatever to the property, nor any right of custody thereof, but only an inchoate right to payment out of its avails, by legal proceedings under and by virtue of the execution. Gallagher v. Bishop, 15 Wis. 282; Ilsley v. Stubbs, 5 Mass. 283; Booth i-. Able- man, 16 Wis. 460; Smith v. Orser, 43 Barb. 187; Repine v. Mc- Phenson, 2 Kan. 340; Willard v. Kimball, 10 Allen, 211. The right to the writ while the goods are in the custody of the law, or of a sheriff, collector of taxes, or other officer acting under authority of the State, is denied by statute in Pennsylv^ania and New York. Morris on Replevin, 83, 113, 114. " The wTit of replevin," says Metcalf, J., in Richardson v. Reed, 4 Gray, 442, " assumes that the goods which are to be replevied have been taken, detained, or attached by the defendant, and are in his possession or under his control ; and it directs that they shall be replevied and tioiivered to the plaintiff, provided he shall give bond, conditioned, among other things, to restore and return the same gootis to the defendant and pay him damages, if such shall be the final judgment in the action. But attached goods are in the legal custody and possession of the officer only. The attaching creditor has no property in them, general or specjjil; no riglit to the p regard(Ml aa the pos.s<^M.sion of the defendant, still this action could not be maintained. It is well settled in this State that replevin will not lie against an olHcer for goods taken on execution from the MITCHELL V. ROBERTS 95 possession of the judgment debtor. Kellogg v. Churchill, 2 N. H. 412; Smith v. Huntington, 3 N. H. 76; Melcher v. Lamprey, 20 N. H. 403; Sanborn v. Leavitt, 43 N. H. 473; Hilliard on Remedies for Torts, 29. Therefore it was once held that the recaption by process of re- plevin, of goods taken by an officer on execution, should be re- garded as contem-pt of the court issuing the execution — Winnard V. Foster, 2 Lutw. 1190; and in Rex v. Monkhouse, 2 Strange, 1184, the court granted an attachment against the under-sheriff of Cum- berland, for granting a replevin of goods distrained on a conviction for deer-stealing. Our statute, authorizing replevin against the officer for goods attached upon mesne process, does not, of course, apply to this case; but the common law rule prevails, with this statutory ex- ception, that goods in the custody of the law cannot be replevied. It was formerly held, in one or two New York cases, that replevin might be maintained against the judgment creditor under whose direction the officer took the goods, on the ground that, as both the officer and creditor were trespassers, replevin would lie against either of them, because it would lie wherever trespass de bonis asportatis would. Allen v. Crary, 10 Wend. 349; Stewart v. Wells, 6 Barb. 79. But this doctrine, utterly inconsistent as it is with the theory which regards the possession of an officer of the court as the possession and custody of the law, has been long since exploded in the only State where, so far as I can ascertain, it ever temporarily prevailed. And it is now held that this doctrine, and the dictum of Cowen, J., in Cary v. Hotailing, 1 Hill, 311, that trespass and replevin are concurrent remedies, must be taken with the qualifica- tion that the defendant is in possession when the action is brought. Brockway v. Burnap, before cited. It is undoubtedly true, that at common law replevin will not lie where trespass cannot be maintained; for by that law an unla^\'ful taking of goods is a prerequisite to the maintenance of replevin. Richardson v. Reed, before cited. But it does not follow that tres- pass will not lie in many cases where replevin will not. Trespass will lie against the AVTongful taker of goods, whether he has parted with the possession of them or not ; but replevin will in no case he against one who has transferred his possession to another. The plaintiff's exception to the finding of the court, therefore, is overruled. It remains to consider whether the defendant is entitled to judg- ment for damages. By the common law, if the plaintiff in replevin 96 FORMS OF ACTION did not prevail in his suit, the defendant had judgment for a return of the property; and by the Statute of Westminster, 2 e. 2, the sheriff executing the \\Tit of reple\dn was required to take pledges, not only for prosecuting the suit, but for a return of the property if a return should be adjudged. But neither the common law, in this respect, nor the statute of Westminster, ever prevailed in this State, — instead of which, by our practice, a judgment for the defendant for damages in the same suit (by which anomalous pro- ceeding the defendant becomes the actor or plaintiff) is the proper judgment. Bell v. Bartlett, 7 N. H. 178. The process de retorno habendo prevails in Massachusetts, and is secured by the replevin bontl. But the pertinent inquiry of Mr. Justice Metcalf, in Richardson v. Reed, is at once suggested by the peculiar aspect of this case: " How can the goods Ix^ returned, on a WTit de retorno habendo, to him who never had possession of them nor the right of possession ? Or how can he be entitled to damages for the taking and detaining of goods in which he had no prop- erty ? " The plea of non cepit admits the property to be in the plaintiff; and, of course, on that plea the defentlant cannot have judgment for damages. Johnson v. W^ollyer, 1 Strange, 507. The defendant will have Judgment for his costs} MURPHY V. BOLGER BROTHERS. Supreme Court of Vermont. 1888. [Reported 60 Vermcnt, 723.] Ejectment in common form. Plea, general issue. Trial by court, March Term, 1886, Ross, J., presiding. Judgment for the plaintiff to recover of the defendants the seisin and peaceable pos- se.ssion of the premises and one cent damages and costs. > Ah to the necessity of possession by the dcfcndiint at the time (he action is brought, mtv. Rainsdcll r. Huswcll, FA Me. '>U'>; Cainau v. Slcni, I'i'i Mass. 413, 20 N. E. 994; (JiUhw v. Crosby, (H .Mich. 4i:i, 2.S N. W. l.'iiJ; House i>. Turner, 1()0 Mich. 240, 04 W. N. 20. Compare .\nic8 v. Mississippi B(K)in Co., 8 Minn. 407. As U) the rinht to rei)lcvy property in llir hands of a i)iiblie ofhcer, see Simpson v. St. John, 93 .\. Y. :{0:j (police clerk); Cobbcy, Replevin, 2d ed., Ch. 13; \V<-11.H, itei)l.vin, 2d ed., f;h. 11. Am to thi- n'"ncral scope of the action of replevin .at conimoii law, .see 1 Chitty, Pleading, 10th Ami. ixl., '181. — Eu. MURPHY v. BOLGER BROTHERS 97 The plaintiff and the defendants were adjoining landotvuers, and there was a dispute between them as to the exact location of their division Hne. The defendants' land was described by courses and distances, and its east line was controlled by the east line of a store buikhng standing upon it. The plaintiff's land was simply bounded b}^ the defendants'. The plaintiff did not claim that the defendants had invaded his property upon the land itself, but did claim that they, in changing the location and making repairs of their buildings, had projected the side of a roof on a barn and on a shed, some sixteen feet from the ground, over the division hne and over the land of the plaintiff. Both parties had caused accurate surveys to be made, and they only differed in that one surveyor, who fixed the line for the defendants, located his line from the side of the old store building, while the surveyor for the plaintiff located his In- the foundation walls of the same building. The court found that the survey made for the defendants was of the correct line, but that the projection of the side of said roof, as the same was built b}' the defendants, did extend over said division line and slightly over the land of the plaintiff. After this suit was commenced, and after the surveys had been made, but before the trial, the defendants had cut away the entire projection of the roof of their buildings, so that at the time of trial no part of said buildings came to the line, but said buildings were entirely upon lands of the defendants. Tyler, J. The question in this case is whether the plaintiff can maintain the action of ejectment, or should have resorted to an action on the case as for a nuisance. This action, which was originally employed in England to enable the lessee of lands, who had been ejected therefrom during his term, to recover damages therefor, was subsequently enlarged to enable him also to recover possession of the land. In later years it has been used both in England and in this country to try questions in- volving the title to real estate. Under our statute, sec. 1247, R. L., a person having claim to the seisin or possession of lands, tene- ments or hereditaments, is entitled to an action by writ of eject- ment, and if he recover judgment it shall be for his damages and the seisin and possession of his lands. Chitty, vol. 1, page 188, defines the action as sustainable for the recovery of the possession of property upon which an entry might in point of fact be made, and of which the sheriff could deliver actual possession, and as not in general sustainable for the recovery of property which is not tangible. 98 FORMS OF ACTION Tyler on Ejectment says, page 37, that by the common law and the general rule, ejectment will not lie for anything whereon an entry cannot be made, or of which the sheriff cannot deliver pos- session; that it is only maintainable for corporeal hereditaments; that anything attached to the soil, of which the sheriff can deliver possession, nun' be recovered in this action. The action of ejectment will lie whenever a right of entry exists, and the interest is of such a character that it can be held and en- joyed, and possession thereof delivered in execution of a judgment for its recovery. Rowan v. Kelsey, 18 Barb. 484; Jackson v. Buel, 9 Johns. 298. The precise question in the case at bar is whether the projection of the side of defendants' roof over plaintiff's land and sixteen feet above it was an ouster of plaintiff's possession of his land, or a mere intrusion upon, and interference with, a right incident to his en- joyment of the land. Blackstone, book 2, page 18, says: " Land hath also, in its legal signification, an indefinite extent upwards as well as downwards ''; ..." the word * land ' includes not only the face of the earth, but everything under it or over it." Defendants' counsel insists that this action cannot be main- tained because there was no intrusion upon the plaintiff's soil, but upon the air or space above it, while plaintiff's counsel claims the rule to be that the action will lie provided the intrusion extends over the line of plaintiff's premises, no matter how slight it is nor how far alcove the soil. If the defendants had constructed their barn so that the founda- tion wall and the l)uilding itself had been wholly or in part over the line upon plaintiff's land, there could have been no question as to the plaintiff's right to maintain ejectment. But suppose they had built their foundation wall strictly upon their own land, but close to the line, and had projected the entire side of tiie building itself a few inches over the line and alcove the plaintiff's land, could the plaintiff maintain ejectment for the intrusion ? If not, it would be because the intrusion was not U|)on the land itself but the space above it. If he could not maintain ejectment, he would be obliged to Hiibmit to the invasion and only hav(! his damages therefor. But the law says the land is his even to the sky, and therefore he has a right to it, and should not be compelled to part with any portion of it upon the mere; payment of damages by th(> trespjisser. A ca.>^e ran rea BARNES V. QUIGLEY 101 BARNES V. QUIGLEY. Court of Appeals of New York. 1874. [Reported 59 Aeu; York, 265.] Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of plaintiff, entered upon a verdict, and affirming an order denying a motion for a new trial. The complaint in this action, in substance, alleged, that on the 3d day of April, 1871, plaintiff was the owner of a promissory note made by defendant, payable to the order of Britton & Co., for S2, 165.86; which was indorsed by the payees and transferred to plaintiff before maturity; that prior to its maturity the payees failed and made an assignment; that on or about the day men- tioned, defendant, for the purpose of deceiving plaintiff and in- ducing him to surrender up the note for a less sum than was due thereon, falsely and fraudulently represented that the note was made by him solely for the accommodation of the payees, he re- ceiving no consideration whatever therefor, and that all moneys paid by him upon the note would be an entire loss, whereas the note was in fact for merchandise sold by the payees to defendant, and that he received full value for the note. That plaintiff relying upon said representations, and being ignorant of the facts, was induced thereby and did accept $582.70 less than the amount due, and sur- rendered up the note. That by reason of the premises said plaintiff has been deceived and defrauded by said defendant out of said sum of $582.70, and has sustained damage to that amount. Defendant's answer admitted the allegations of the complaint as to the making, indorsement and transfer of the note, the failure of the payees, and that he paid the sum of $1,600 in full settlement of the note, which was surrendered up to him. He denied all the other allegations of the complaint. On the trial plaintiff moved for judgment on the pleadings, which motion was granted, and directed a verdict for the balance unpaid on the note, to which de- fendant's counsel duly excepted. Allen, J. The complaint is for fraud, and not upon contract. Whether the facts stated constitute a cause of action is not mate- rial. The whole frame- work is in fraud, and the cause of action, as set forth, is based upon the false and fraudulent representations of the defendant, by which the plaintiff was induced to surrender D^' 102 FORMS OF ACTION and give up to the defendant his promissory note, held and owned by the plaintiff, for an insufficient consideration, an amount con- siderably less than its face, by reason whereof, as alleged, the " plaintiff has been deceived and defrauded out of saiil sum of $582.70, and has sustained damage to that amount." The theory of the plaintiff at the conmiencement of the action, and the foundation of his claim as formally made in his complaint, was, that a surrender of the note upon the receipt of an agreed sum, less than the amount actually due in satisfaction for the full sum, was equivalent to a release under seal, and effectually discharged the debt. In that view he could only recover by impeaching the release and discharge, for fraud, and he framed his com- plaint to meet the case in that form. His whole cause of action rested upon the alleged fraud, and it was an entire change of that cause, and a surprise upon the defendant, when this view was ignored by the counsel and the court at the trial, and a verdict ordered upon a denial in the answer of the only material allegations of the complaint. We are not to speculate upon the question whether the surrender of the note did discharge the obligation. The plaintiff assumed that it did, and brought his action to recover for the fraud by which the discharge was procured. It was error in the court to change the form of the action, by striking out or treating as surplusage the principal allegations — those which characterize and give form to the action — because, perchance, there may be facts stated by way of inducement spelled out, which would, when put in i)roper form, have sustained an action of as- sumpsit. The defendant was called ui)on to answer the allegations of fraud, and not to resist a claim to recover in assunijjsit. The two forms of actions might require very different defences. Tiiis is not the case of an obligation or contract fraudulently incurred, in an aetion upon which the fraudulent acts of tlu> obligor or promis- sor are averrecl, which, as they do not enter into the contract, and are not essential to tlie cau.se of action, may and should be rejected as surplusage, as in Clraves r. Waite, 59 N. Y. 15(), recently decided by this court. Tlie plaintiff was not, under tiie complaint, en- titled to a verdict and judgment, as in an a!igation. ^\■hile (he ("ode is KNAPP V. WALKER 103 liberal in disregarding technical defects and omissions in pleadings, and in allowing amendments, it does not permit a cause of action to be changed, either because the plaintiff fails to prove the facts necessary to sustain it, or because he has mistaken his remedy, and the force and effect of the allegations of his complaint. Code, § 173; DeGraw v. Elmore, 50 N. Y. 1; Ross v. Mather, 51 Id. 108; El wood v. Gardner, 45 Id. 349. The judgment must be reversed and a new trial granted, costs to abide the event. All concur in result. Judgment reversed.^ KNAPP V. WALKER. Supreme Court of Errors of Connecticut. 1900. [Reported 73 Connecticut, 459.] Action to recover damages for breach of contract and for fraud in an exchange of horses, brought originally before a justice of the peace and thence, by the defendant's appeal, to the Court of Com- mon Pleas in Fairfield County and tried to the court, Curtis, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendant for alleged errors in the rulings of the court. No error. The complaint alleged that the defendant owned a gray mare which he represented to be worth $100, which he offered to ex- change for a gray horse owned by plaintiff, of the value of $100; that by agreement with the defendant, the plaintiff, believing the statements of the defendant to be true, left his gray horse at a cer- tain livery stable, where it was taken by the defendant, but that the defendant failed to leave his gray mare at said place, as had been agreed, but left a bay mare which was of no value and which afterwards died; that plaintiff immediately, when said bay horse was brought to his house by his hired man, notified the defendant that the bay mare was unsatisfactory. Paragraphs 7 and 8 of the complaint were as follows: "7. The defendant at the time the agreement was made did not have the gray mare in his possession, and did not intend to deliver the same as he had agreed, but falsely and fraudulently represented to the ' See Mescall v. Tully, 91 Ind. 96; City of Union City t'. Murphy. 176 Ind. 597. Compare Wilson v. Haley Live Stock Co., 153 U. S. 39, 38 L. ed. 627. — Ed. 104 FORMS OF ACTION plaintiff that he had such a gray mare and that he would deliver the same as aforesaid, and therein' induced the plaintiff to part with his said horse. 8. The defendant made said statements kno^^^ng them to be false, with intent thereby to make said exchange and ck'fraud him." The complaint asked for SlOO damages. The answer denied the material allegations of the complaint. The court found the facts substantially as alleged in the com- plaint, excepting that paragrajjhs 7 and 8 were untrue, and found that the gray mare, which the defendant had promised to deliver to the plaintiff, was at the time of the exchange of the value of S30. The defentlant claimed that from the averments of the complaint the action was for damages for the alleged fraud of the defendant; and that since the complaint contained but a single count alleging fraud, it could not properly be interpreted as also describing a cause of action upon a contract for which the plaintiff could recover after having failed to prove the fraud alleged. The court overruled said claims and rendered judgment for the plaintiff for $30. Hall, J. A cause of action for breach of a contract for the ex- change of personal property, and one for fraud in inducing the plaintiff to part with his property by means of false rejjresentations, may be united in the same complaint when both causes of action arise " out of the same transaction or transactions connected with the same subject of action." General Statutes, § 878. Though different rules of damages may be applicable to the two causes of action, yet when a recovery can be had upon but one, and both arise " out of the same transaction or transactions connected with the same subject of action," they may both be stated in one count. Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co., 63 Conn. 551, 502. The complaint before us, containing but one count, describes a cause of action for fraud. It alleges that the defendant by cer- tain fal.se and fraudulent representations, which are set forth, in- duced the plaintiff to part with his horse of the value of $100. It also describes a cau.se of action for l)reach of contract. It alleges that the defendant failed to perform his agreement to deliver a certain gray mare in exchange for the horse which he had received from the j)laiiitiiT. 'i'he dealings between tln' plaintiff and defend- ant with reference to an exchange of hor.ses was the transaction out of which both the alleged causes of action arose, and a statement of all the claimed fjicts of the entire transaction therefor*' involved U sf at cimiit (if both of .'-aid causes of action. BRUHEIM V. STRATTON 105 Under our practice the plaintiff had the right to state in one count the entire transaction, and to submit to the court the ques- tion whether, upon the facts, he was entitled to recover the value of the horse which he had delivered to the defendant, upon the ground that he had been induced to part with it by the defendant's fraud, or only the value of the horse which the defendant had prom- ised to deliver to him in exchange, upon the ground that his only right of action was for breach of contract. The court having found that the defendant failed to perform his agreement, but that there was no fraud in the transaction, properly rendered a judgment for damages for breach of contract. Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co., 63 Conn. 551; Metropolis Mfg. Co. v. Lynch, 68 Conn. 459, 470. There is no error. In this opinion the other judges concurred. BRUHEIM V. STRATTON. J ^ Supreme Court of Wisconsin. 1911. tJ^cX'v- '.^ [Reported 145 Wisconsin, 271.] TVXt>A^ ^- ■ Kerwin, J.^ The complaint in this action stated that the plain- ' ' jvOA^ tiff was the owner of certain lands in Minnesota and that between ^-c^-iu. November, 1903, and March, 1904, the defendant unlawfully and wrongfully entered upon said land and without authority wilfully and wrongfully cut standing live timber growing thereon and wil- fully and wrongfully took and carried the same away and con- verted the same to his own use, to the great injury and damage of the plaintiff, and further alleged the value of said timber converted, and demanded judgment for that amount and also treble said amount as damages under the Minnesota statutes. The complaint also contains allegations setting up the statutes of Minnesota re- specting wilful trespass and single and treble damages. The de- fendant answered admitting that the Minnesota statutes set up in the complaint were in full force and effect in the state of Minne- sota as alleged in the complaint, and denied every other allegation of the complaint. ' The statement of facts and the dissenting opinion of Barnes, J., are omitted. — Ed. 106 FORMS OF ACTION The court below sustained an objection to any evidence under the complaint for the roa.son that it was a complaint in trespass upon lands in jMinnesota, therefore the court had no jurisdiction of the action, and denied the application of the plaintiff to amend the complaint on the ground that it had no power or jurisdiction to allow such amendment, for the reason that, the cause of action being one in trespass, the complaint could not be amended so as to set up a cause of action for conversion of the timber cut. We think the court below erred in both particulars. In the first place there were sufficient allegations in the complaint to make a good cause of action in conversion, and what the idea of the pleader was when he drew the complaint was inuuaterial. If the allega- tions were sufficient to constitute a cause of action in conversion the plaintiff was entitled to have it treated as such by the court, and the fact that the court had no jurisdiction of the action of tres- pass upon the land in another state rendered the allegations re- specting a cause of action in trespass merely surplusage, and, there being sufficient allegations aside from these to make the complaint one in conversion, it should have been so treated by the court. S^^^ft v. James, 50 Wis. 540, 7 N. W\ 656; Bieri v. Fonger, 139 Wis. 150, 120 N. W. 862; Morse v. Gilman, 16 Wis. 504; Manning v. School Dist., 124 Wis. 84, 102 N. W. 356; Franey v. Warner, 96 Wis. 222, 71 N. W. 81; EmcTson v. Nash, 124 Wis. 369, 102 N. W. 921. Doubtless the com])laint as originally drawn would have been subject to a motion to make more definite and certain or to strike out the surplus allegations, but no such motion was made and defendant answered on tlie merits. Hagenah v. Geffert, 73 Wis. 636, 41 N. W. 967; Phillips v. Carver, 99 Wis. 561, 75 N. W. 432. Respondent relies upon Joseph D(\ssert L. Co. v. Wadleigh, 103 Wis. 318, 79 N. W. 237. It will be ol)served, however, that was an action brought for trespass upon lain 1 in Wisconsin, which action the court had jurisdiction of. Moreover the strict rule laid down there has not been folhnved by this court. In Bieri v. JMniger, supra, the court said (page 155): " In the IlKht of the very lihorai rules for tcstinR the suflicipncy of plcjul- iriRH and proceodinKS which have been dcciiirod in recent years and the pros^csHive t^^^ndency to broaden the jufhcial vision as to the scope of sec. 2h21^, StatH. (ISUS), aforesaid, lh(! criticism in Joseph Dessert L. Co. v. W ailleinh, Nuprti, would hardly l»e inad(! today. TIk* general spirit of the decisi(jn u.s rcj^ards essentiality of technical accnracy in jjleadin^s and ncccHHity for u party to stand or fall, inidcr all circuinstanccs, hy th(; par- ticular cause of action he intended to plead, is not in strict, harmony with the luter-' early period chancery compelled the delivery of title deeds where necessary. Blackstone's Comm., Shar.'s Ed., Book 3. p. 153, note. Later they became recoverable in an action of detinue. Chitty, in his work on Pleadings (vol. 1, p. 122), says, detinue " lies for the recovery of charters and title deeds," &c. See Atkinson v. Baker, 4 Term Rep. 430. Now, what was the action of detinue ? Blackstone, in his Com- mentaries (Book 3, p. 151), thus describes its incidents: " In order, therefore, to ground an action of detinue, which is only for the detaining, these points are necessary. 1. That the defendant came lawfully into possession of the goods, as either by delivery to him, or finding them. 2. That the plaintiff have a property. 3. That the goods themselves be of some value; and, 4. That they be ascertained in point of identity. Upon this the jury, if they find for the plaintiff, assess the several values of the parcels detained, and also damages for the detention; and the judgment is condi- tional ; that the plaintiff recover the said goods, or (if they cannot be had), their respective values, and also the damages for detaining them." Such was the common law action of detinue; and as it was an action for the recovery of personal property only, we must hold that whatever could be recovered by it was regarded, for the pur- poses of this civil remedy, as personal property. The action of replevin, at common law, was originally of a inplevin for unlawful takings, thus came to cover the whole ground of unlawful deprivations of personal property, so far as recovering the specific articles was concerned. 1 Chit. PI. 1()2, 164. These two actions, viz., detinue, ami rei)lcvin, in their fullest scope, were formerly in use in this Stat.e. Ind. Dig., p. -Ki, ct scq.; Wid Will, on Per. Prop., top p. 10. And it will be seen at a glance, by inspecting the provision in the code for the recovery of personal proi»-rty, that it covers the entire ground of both actions. That provi-ion is C5 r2S), " whin uny jjersonal goods are wrongfully WILSON V. RYBOLT 111 taken, or unlawfully detained," &c. The jurisdiction of justices of the peace, as to the character of articles of property, is equally extensive. 2 R. S., § 71, p. 464. The conclusion irresistibly follows, that the possession of title deeds may be recovered in the action under the code for the re- covery of personal chattels. . . . Per Curiam. — The judgment is affirmed with costs.^ ^ For a comparison of the common law and code actions for the recovery of personal property, see Ames v. Mississippi Broom Co., 8 Minn. 467. As to the necessity of possession by the defendant at the time the action is brought under code provisions as to claim and dehvery of personal prop- erty, see Nichols v. Michael, 23 N. Y. 264, 80 Am. Dec. 259; Sinnott v. Fleiock, 165 N. Y. 444, 59 N. E. 265, 53 L. R. A. 565, 80 Am. St. Rep. 736; Willis V. DeWitt, 3 S. D. 281, 52 N. W. 1090; Kierbow v. Young, 20 S. D. 414, 107 N. W. 371, 8 L. R. A. (n. s.), 216, 11 Ann. Cas. 1148; Andrews v. Hoesich, 47 Wash. 220, 91 Pac. 772, 18 L. R. A. (n. s.), 1065. — Ed. CHAPTER V. PARTIES. Section 1. Right to Sue oud Liability to he Sued. PEARSON r. XESBIT. Supreme Court of North Carolina. 1827. [Reported 1 Devereux, 315.) Richmond Pearson ai)i)ointed the present Plaintiff, and Jesse A. Pearson, executor and executrix of his will. At the time of his death, he was indebted to Alexander Nesbit & Company, which consisted of the pr('S(>nt Defendant, and the same Jesse A. Pearson, whom he had appointed one of his executors. A vrrit issued in the name of "A. Nesbit & Co.," Plaintiffs, against " Jesse A. Pearson and Elizabeth Pearson, executor and executrix of Richmond Pearson,'' Defendants, returnable to the Fall Term of 1820, of Rowan Superior Court, when judgment was confes-sed thereon by the Defendants. Execution issued on this judgment, and was continued until the Spring Term of 1823, when a return of Nulla bona testatoris was made. After the confession of the judgment (the ca.se did not state when) Jesse A. Pearson died. A acire facias on the judgment issued at the instance of Nesbit, as surviving partner, to subject the present Plaintiff de bonis propriis. At the Fall Term of 1827, the present Plaintiff, one of the original Defendants, filed an affidavit, stating that Jesse A. Pearson was both Plaintiff and Defendant in the first action; that she never had received any of the a.ssets of Hichmond Pear.son, and moved, Ist, for a writ of error coram yiobis; and if the matter a.ssigned was not error, then 2H: Hri^RH v. LlKhthoutH, 11 Allen (Mmw.), 157; Snhooner KxrlmiiKo v. M'Fmldon, 7 f'riiiirli, 1 1(1; Wiul.sworth v. Queen of Sj)iiin, 17 (^ H. 171 : I)e IIjiImt v. (^ueen of I'c.rtiiKiil, 17 Q. H. 171, 100; The Constitution, I- H. I I'. !).:{<»; The I'nrlc- nient HeJKf, L. II. .'i I'. I). 1<.>7; V'uviiKS«'ur v. i flemurrers were interposed to the complaint, one by the Book- l/nidcrs' Union, and one by the individual members thereof, the gnjunds of which are (1) that i)laintiff St. Paul Typothetic has no legal capacity to sue, and (2) that tiio complaint ck)es not state facts sufficient to constitute a cause of action against tlie union in favor either of the Typothetai or th(! West Publishing Comi)any. The demurrer as to the West Publishing Company was sustained, but overruled as to the Typothetjn. I'.otli parlies ai)j)ealed. ' Compnrc Wc-stir members. This rule applies to the union, unless it comes within the scope of the statute jjroviding for actions against persons doing business under a common name. The statute, it is clear, was not intended to include associations of this character. Its purpose was to authorize the courts to take jurisdiction over unincorporated associations engaged under ;i common name in some sort of busi- ness in which property is liought and sold, dehts contracted — concerns owning an,S. On the fim-Htictn of wiiiviT, «(•<• Spuiild to the whole; fund, it wjis proper for tlu; protection of the dcfciidaiit that both should b(! parties. " It was not so material whether they were plaintiffs or defendants, so that their rights under the eon- tract would b(! barreil by the event of the suit." .Morningstar v. Cunningham, 110 In so tiiat they can l»ring one action. \\ lure a toil lias been done, ( he tori is a sej)arate tort to each man wIkj complains. if indeed there were a joint tort, for instance, slander of several persons in partnerslii]), the perHons injured would lia\"e jninefj and niainlaimil the adion, but could have maintained the action for the joint damage only. Ilen^ then- is no joint dan;age. lOacli man's character, if there is a libel, BOOTH V. BRISCOE 133 has been separately libelled. There is no doubt, therefore, that prior to the Judicature Act this proceeding would have been erro- neous, but it scorns to us that under Order XVI., Rule 1, these plaintiffs may well join as plaintiffs: " All persons may be joined as plaintiffs in whom the right to any relief claimed is alleged to exist, whether jointly, severally, or in the alternative." Now it seems to me that that word " severally " must comprehend the present case. I think therefore that they may very well join; and if several actions had been brought, a consolidation might, if there was any convenience in it, have been ordered by an application under the other rules. But although they might all join, I think, as their damages are several, their damages ought to have been severally assessed, instead of which, 40s. has been given to the whole of them. But who is to complain of that ? I do not think that the defendant will suffer by it, because the probabilities are that if the damages had been severally assessed there would have been eight times 40s. damages given. At all events, he does not shew that he is injured by it; and if the plaintiffs have no objection to take the 40s. and divide it amongst themselves, it seems to me that the defendant has no right to complain. As far, therefore, as this is concerned, I see no difficulty in saying that this verdict and judgment should stand. ^ Judgment affirmed. * For the present form of Order XVI., Rule 1, see infra, p. 165. The words there printed within brackets formed no part of the rule previous to October, 1896. For decisions previous to the change in the rule, see, in addi- tion to the principal case, Sandes v. Wildsmith, [1893] 1 Q. B. 771 (action for separate slanders of the two plaintiffs who were mother and daughter) ; Smurth- waite V. Hannay, [1894] A. C. 494 (action by several shippers and consignees against ship-owners for short dehvery); Peninsular and Oriental Steam Nav. Co. V. Tsune Kijima, [1895] A. C. 661 (action by several persons injured in one collision); Carter v. Rigby, [1896] 2 Q. B. 113 (action by representatives of several persons killed in one accident in a mine). In these cases it was held that there was a misjoinder of parties plaintiff. For decisions subsequent to the change in the rule see Stroud v. Lawson, [1898] 2 Q. B. 44 (action against a company and its directors in which plaintiff claimed for himself damages for fraud in inducing him to buy shares in the company, alleging as one element of the fraud that the defendants had declared and paid a dividend on the shares of the company when there were no profits, and seeking on behalf of himself and all other shareholders a declaration that the payment of the dividend was liltra vires and illegal and a judgment for the repayment of the amount of this dividend) in which the join(l(>r was disallowed. In the following cases the joinder was allowed: Drincqbier v. Wood, [1S99] 1 Ch. 393 (action for damages for false representation in a prospectus which induced the several plaintiffs to buy debentures); Bedford i^. Ellis, [1901] A. C. 1 (action to assert common right to use cart stands in a market). — Ed. 134 PARTIES ST. LOUIS & S. F. R. CO. v. WEBB. Supreme Court of Oklahoma. 1912. [Reported 36 Oklahoma, 235.] Harrison, C. This cause was originally begun in the justice court of Hugo towTiship, Choctaw county, and jutignient obtained for $75. Thereupon an appeal Wius taken to the county court by the railroad company and judgment there rendered against the company for the sum of S70, from which judgment the railroad compan}' appeals. There are two questions involved, either of which would necessi- tate a reversal of the judgment. First. Whether the plaintiff Webb, was the sole owTier or a joint owner of the horse alleged to have been killed. Second. The insufficiency of the evidence as to the negligence of defendant.^ As to the first proposition, it is shown by the record that plaintiff, though suing in his own name, was not the sole owner of the animal, for the killing of which suit was brought, but that a half interest in such animal was owned by one A. M. Merrill, and that the court, though requested so to do by the defendant, refused to submit the question of joint ownership to the jury. The plaintiff alleged that the horse in question belonged to him. Mr. Webb testified that Merrill had a conditional interest in the stock, but that he was to stay a certain length of time, and did not stay that length of time; that he bought back^Merrill's conditional interest, but the record shows that it was bought back after suit was begun. Merrill testified that he owned an indirect one-half interest in the stock. The record fails to show just what this one-half interest was. It might justify the possible inference that Merrill's interest was in th(; increase of the stock, but fails to show conclusively what such interest was. But ina.snmch as it shows some interest in Merrill, and inasmuch as Webb's right of action depended upon whether he was the owner of the stock sued for, and iiuusnmch as there was a controversy as to whetluT he was the sole owner or whether he and Merrill were joint owners, we think the court erred in refusing to submit this question to the jury. " Persons who have a joint interest must sue; jointly for an injury to siu-h interest. Joint owners of property must unite Jis ' Duly the jiiirf r ap- pointed upon the estate of William Hart, deceased, or that there were any debts against him which required the appointment of one for their settlement. The right to the possession, th<'refore, accom- panied the title, which vested in the witlow and heirs. In Meeks V. Halm, 20 Cal. 620, an administrator had been appointed, and in such case we held that the right to the possession of tlu; real prop- erty, of which the intestate died seized, remained exclusively with the administrator until the estate had been settled, or the property had been distributed to the heirs by the decree of the Probate Court. Judgment ajfirmcd.^ ' The Btatrmcnt of fiictH in omitted. — Ki). » Clark V. ViiUKh.'in, .i Conn. V.il; McNoiir r. WilliiuriMon, UM) Mo. .'}.')«, 00 S. W. 100; Brown v. VVarn-n, 10 Ncv. 2Jh; Clupp v. I'liwliickot Inst, for Sav., 15 K. I. 4H9, H Atl. 097, 2 Am. St. K.p. '.M.') {aemblc), accord. But see Dicey, Purti«-«, p. 492 (rule 111). Kn to the extent of th<- pl.uiililT's n-cuvcry, we .Moultnti v. MeDcnnott, HARRIS V. SWANSON & BRO. 137 HARRIS V. SWANSON & BRO. Supreme Court of Alabama. 1878. [Reported 62 Alabama, 299.] The appellant, M. H. Harris, commenced this action against the appellees, M. B. Swanson & Brother, to recover the statutory- penalty for their failure to enter satisfaction on the record of a mortgage, for more than three months after payment and request to enter satisfaction. It was alleged that the mortgage was exe- cuted by the plaintiff and one Wright, who were then engaged in a planting partnership, but that all the property covered by it, except the crop raised that current year, was the personal property of the plaintiff. A demurrer for a non-joinder of Wright as party plaintiff having been interposed and sustained by the Circuit Court, the plaintiff offered to amend by making Wright a co- plaintiff, and tendered to said Wright indemnity for all costs and expenses of suit. It was sho'WTi that the security tendered was ample. The court then asked said Wright if he was willing to be made a party on the indemnity offered him by the plaintiff. Wright objected to being made a party plaintiff. The plaintiff then offered to show to the court by said Wright that he did not object 80 Cal. 629, 22 Pac. 296; Winborne v. Elizabeth City Lumber Co., 130 N. C. 32, 40 S. E. 825; Mobley v. Bruner, 59 Pa. 481. It has been held that tenants in common of land must not join in ejectment. Heatherley v. Weston, 2 Wils. 232; Stevenson v. Cofferin, 20 N. H. 150 (writ of entry). See Chitty, Pleading, 16th Am. ed., p. *74. But see Bush t'. Bradley, 4 Day (Conn.), 298; Jackson v. Bradt, 2 Caines (N. Y.), 169. By statute in some states tenants in common may join in ejectment. See Hicks V. Rogers, 4 Cranch (U. S.), 165; West Chicago Park Commissioners v. Cole- man, 108 111. 591; Tilden v. Tilden, 13 Gray (Mass.), 108. In an action for damages tenants in common of land may join. Chamier V. Chngo, 5 Maule & S. 64; Daniels v. Daniels, 7 Mass. 135. And it is generally held that they must join. Bullock v. Hayward, 10 Allen (Mass.), 460 (semble) ; Hill V. Gibbs, 5 Hill (N. Y.), 56; De Puy v. Strong, 37 N. Y. 372 (under code). See Chitty, Pleading, 16th Am. ed., p. *75. At any rate more than one and less than all cannot sue for damages. Kimball v. Sumner, 62 Me. 305. The New York Code of Civil Procedure, sec. 1500, provides that " where two or more persons are entitled to the possession of real property, as joint tenants or tenants in common, one or more of them may maintain such an action, to recover his or their undivided shares in the property, in any case where such an action might be maintainetl by all." See Deering v. Reilly, 167 N. Y. 184, 60 N. E. 447. There are similar provisions in some other States. See Pomeroy, Code Remedies, 4th ed., p. 198. — Ed. 138 PARTIES to the character or sufficiency of the indemnity, but objected on personal grounds. The defendant objected to this testimony, the court sustained the objection and refused to allow plaintiff to make the proposed amendment, or to compel said Wright to allow himself to be made a party plaintiflf, except upon conditions which the plaintiff refused to comply with, and plaintiff excepted. There was a judgment on demurrer for the defendants, and the plaintiff brings the case here by appeal. Bhickell, C. J. It is an elementary principle, that when the legal interest in a cause of action, whether it arises out of contract, or is ex delicto, is joint, residing in several persons, all who are living must join in the action founded on it. One or more of the parties may use the name of all in the commencement and prosecution of the action. If others are unwilling to join in the prosecution, the unwillingness does not authorize a dismissal of the suit. They can and will, on a proper application, be protected by an indemnity against costs, from those prosecuting the suit. All courts have an inherent power to protect themselves and their suitors from an abuse of their process, and to protect the rights and interests of those who have beneficial interests in the subject matter of suits. In Cunningham v. Carpenter, 10 Ala. 109, one of the several part- ners instituted a suit at law in the name of the partnership, and another partner came in and proposed to dismiss the suit so far as he was concerned. The dismissal, if allowed, would have been fatal to the suit. This court said, there would be no substantial difference between allowing a partner to extinguish a partnership debt with his individual debt and allowing him to interfere \vith a suit his partner had commenced, especially ivhcn the offer was made to secure him against costs. The statute authc^rized the amendment of tlie complaint, by the insertion of the name of Wright as a plaintiff. When the complaint was amended, Wright, if unwilling to join in the prosecution of the suit, could have denKUidcd from Harris indemnity against the costs, and a rea'ionable time should have been allowed to furnish it. It Wiis tendered inmiediatcly, however, and with its character and suffifiericy Wright was satisfied. lieing satisfied, his personal iiiiuiHiiignesH to prosecutr tlic suit, is imniat( ri;il, Ik- is not l)ound if it results in a judgment favorable to Harris ami himself, to par- tieipale in its fruits; but he is without power to arrest or impede the prosecution of the suit. The indemnity being satisfactory to Wright, it was not the |)rovince of the court to recpiire that any other should be given in lieu , 8 Ati. 41)7, 59 Am. Kep. 758. — Ed. BURGOYNE AND MILLER V. OHIO L. I. & T. CO. 141 B. Defendants. BURGOYNE, Administrator, and MILLER v. OHIO LIFE INSURANCE & TRUST COMPANY. Supreme Court of Ohio. 1855. [Reported 5 Ohio Slate, 586.] Ranney, C. J. The action in the court below, was brought upon a joint and several promissory note signed by Ludlow, Miller, and Dudley; the last of whom was not served with process. The de- murrer filed by Ludlow's administrator, was overruled, and a sev- eral judgment, in due form, entered against him, to be levied of the goods, etc., of the intestate, and also a judgment against Miller on default. It is now insisted that these sev^eral parties could not be joined in the same action; that the obligation must have been treated by the creditor as either joint or several; in the one case warranting only a single judgment against the survivors, and in the other, requiring a separate action against each of the parties or their personal representatives. By a settled rule of common law, the death of one of the joint makers of an obligation, extinguished all remedy at law against his estate. If the contract was joint, the action must be joint, and a joint judgment must follow. But as the same judgment could not be rendered against the sur\avor, and the personal representative of the deceased party, the consequence was, that no action at law could be maintained against the personal representative, either jointly with the survivor or by a separate suit. 1 Chitty's PI. 187; Brigden v. Park, 2 B. & C. 424; Ashby V, Ashby, 7 Id. 444; Demott v. Field, 7 Cow. 58; Corner v. Shew, 3 M. & W. 350. In such cases relief was afforded in chancery, but only when a necessity for such interposition was shown to exist; and, therefore, only upon the condition that the remedy at law against the sur- vivor, had proved fruitless. 3 Denio, 65; 2 J. C. Rep. 508; 1 Story's Eq., sec. 162; 11 Paige Rep. 80; 10 Id. 101. And inasmuch as no equities arise against a surety, and he is only legally bound upon the strict terms of the obligation into which he has entered, there is no small show of authority in the early cases for affirming, that no such interference can be invoked against the estate of a party thus situated. Hoar v. Contanien, 2 Bro. C. C. 27; Sumner v. Powell, 2 Mer. 30; Ex parte Kendall, 142 PARTIES 17 Ves. 519; Weaver i-. Shryork, 6 Serg. and R. 262; 1 Story's Eq., sec. 164. In view of the difficulties which surrounded this subject at the common law, legislation became imperative; and it has been fully supplied. By the 90th section of the act to provide for the settle- ment of the estates of deceased persons (Swan's Rev. Stat. 378), it is enacted, that " when two or more persons shall be indebted in any joint contract, or upon a judgment founded upon any such contract, and either of them shall die, his estate shall be liable therefor, as if the contract had been joint and several, or as if the judgment had been against himself alone." This statute effected an entire abrogation of the common law })rinciple to which allusion has been made; and left the estate of the deceased joint debtor liable to every legal remedy, as fully as though the contract had been joint and several. Until the passage of the act to establish a code of ci\al procedure, it is very true, his personal representative and the survivor could not be sued in the same action. But by the 38th section of that act, it is provided, that " persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may, all or any of them, be included in the same action, at the ojition of the plaintiff." And the 371st section allows a several judgment to be given against any one of the defendants, as the nature of the case may require. In the opinion of the court, these sections permit the joinder of the survivor or survivors, and the personal representative of the deceased obligor, in the same action, whether the contract is in terms joint and several, or made so by the 9Uth secti(jn of the ad- ministration law upon the death of a joint obligor; and authorizes a several judgment to be rendered against each, according to the nature of tlu-ir respective liabilities. We are aware that these provisions of our code, are almost literalh' copied from correspond- ing provisions in the code of New York; and that a different con- struction WHS placed upon them by a single judge of the su])reme court of that State, in the case of Morehouse v. Ballon, 16 Barb. Rep. 289. With all pro|)er respect for the ojiinions of each of the thirty-two judges of uhicli that court is coinfxjsefl. we think it much Siifer to r need not go beyond the volume to which we huv(! been referred, to find authority for our McCALL V. PRICE 143 position, and a direct contradiction to the case above cited. In the case of Parker v. Jackson, 16 Barb. 33, decided at a general term of the supreme court, by four judges, it was held that all the parties severally liable upon the same instrument might be prosecuted in the same action, and several judgments be entered; that such a proceeding was to all intents, under the code, a several action, giving the full right to separate defenses; and that such an action might be maintained against the surviving debtor, and the repre- sentatives of a deceased co-debtor, without alleging the insolvency of the survivor. On the whole, we can find no error in the pro- ceedings of the court below, and its judgment should be afl&rmed.^ McCALL V. PRICE. Constitutional Court of South Carolina. 1821. [Reported 1 McCord, Law, 82.] This was an action of debt, on a joint bond of one Thomas Nichols, and defendant. An appearance was entered for defend- ant; but as to Thomas Nichols, the sheriff returned that he was absent from the State, and could not be found. The plaintiff de- clared against the defendant, stating, in his declaration, that the said co-defendant or obligor, Thomas Nichols, was absent and could not be served with process. To this, defendant pleaded in abatement, that Nichols was joined as an obligor with her, and that he was alive, &c. In reply, the plaintiff alleged that said Nicholas was absent from the State, and could not be served with process. To this replication, defendant demurred. 1 At common law parties severally liable in contract could not be joined as defendants. But the code provision that one or more of the persons severally liable on a written instrument may be included in the same action at the option of the plaintiff has been widely adopted. See Pomeroy, Code Remedies, 4th ed., pp. 299, 393-104. On the question of the right under statutory provisions to join survivors of joint debtors with representatives of a deceased debtor, see Braxton v. State, 25 Ind. 82; Lee r. Blodget, 214 Mass. 374, 102 N. E. 67; Voorhis v. Child's Executor, 17 N. Y. 354. Compare Potts v. Bounce, 173 N. Y. 335, 66 N. E. 4. And see Pomeroy, Code Remedies, 4th ed., p. 292. As to the right to join an agent and an undisclosed principal in an action on a contract, see Gay v. Kelley, 109 Minn. 101, 123 N. W. 295, 26 L. R. A. (n. s.), 742; Tew v. Wolfsohn, 77 N. Y. App. Div. 454, 79 N. Y. Supp. 286, affirmed 174 X. Y. 272, 66 N. E. 934. — Ed. 144 PARTIES This demurrer and plea in abatement, was overruled by his honor, after argument, on the grounds, that as the process of out- lawry was not known to our laws, and there ought to be a remedy, he thought that the lodging of a writ against Nichols, the co- obligor, being the first step towarils making him appear, was, on the return of the sheriff that he was absent from the state, sufficient to enable the plaintiff to declare against the obligor who was served. From this decision, the plaintiff appealed to the Constitutional Court upon the following grounds: 1st. Because, when the parties are jointly and not severally bound, as they are here, the obligee must sue them jointly. 2d. Because, if the process of outlawry be known to our laws, it should have been sued out against the co-obligor, Thomas Nichols, before the defendant, Mrs. Price, could be legally charged with the whole debt. 3d. Because, if such outlawry process be unknown to our laws, there is no remedy at law for the plaintiff, and the Judges cannot make one. CoLCOCK, J, The common law doctrine, that where there are two joint obligors, both must be sued, is too familiar to admit of doubt; also, that it has been decided in England, that where one of two joint obligors is out of the kingdom, the plaintiff must pro- ceed to outlawry against him. Sheppard v. Baillie, 6 T(Tm Rep. 327. But I am of opinion that the proc(>ss of outlawry is obsolete, and contrary to the spirit and principles of our government. It would be inconvenient in practice, if not utterly impracticable, without some legislative provision; and therefore there is no remedy, unless the plaintiff be allowed to proceed in the manner in which he has proceeded. I take it that it is incumbent on us to pursue the common law, only so far as the same is consistent with the principles and si)irit of our go\(rninent, and that in this in- stance I have done so. By the coinnion law of England, it is es- tablished, that wliert! then* are two joint obligors, both must be sued. By the same law, a reincijy is given, where one is without the kingdom. Shall it be said we are to adopt the first pro\ision of the law, when the other cannot be api)lied ? I am ready to say we are not IdMiinl to do so. Again, if (lie process of outlawry in such a case as the j)resent were resorted to in England, what would result ? That it would appear that one of the joint obligors was absent from t he king {>lcas ix'ing tiius eliminated, and the i)laiiitiff having there- iifjon proceeded to take judgment by default as for want of a i)lea, it remains to l)e considenMl wlietlier his judgment against M(diin- (len alone is erroneous. As to this, the argument is that under section 2 of our act concerning oliligal ions'- (den. Stat., p. 2'.VM\), ' A part «>f tlu! opinion in whicli it. w.-ls liclil tli:it the action of tin- court in HtrikiriK out th(? plcjiH wiw not rcvicwalilc, ami certain other jiarts of the (>l)inion, aro oniitU**!. — lOn. * Hf-ctitm 2 of the Act providcH "That all pcrsotiH jointly indchted to any other iwp«on or jKTHonH, ujMin uny joint mntriutt, oblij^alion, matter, or thing, BLESSING V. McLINDEN 147 while one of two defendants jointly indebted to the plaintiff may be required to answer, he nevertheless remains only jointly liable; that the judgment provided for by the act must be a joint judg- ment, and may not be a judgment against the answering defendant alone; that the act may not be reasonably construed to change a joint liability to a several liability; that by virtue of the adoption of the fourteenth amendment of the federal constitution, as con- strued by the Supreme Court of the United States in Pennoyer v. Neff, 95 U. S. 714, our statute is either rendered totally ineffective, or must be limited in its effect as against the joint debtor not served so as to be enforceable only against the joint property; but that in any event the act requires that the judgment shall go against all the joint obligors or against none. . . . The purpose and effect of the act will be better understood after a brief reference to the law as it theretofore stood. The old English practice respecting actions against joint debtors, some only of whom could be served with process, was to proceed to outlawTy against the absent or absconding defendant, and hav- ing done this to prosecute the action against the defendant who was served, declaring against him alone upon a joint contract made by him and the absentee. 1 Tidd Pr. (3d Am. from 9th London ed.) *130, 131; 1 Chit. PI. (13th Am. from 6th London ed.) *42; 2 Id. *8. But this practice did not rest upon the ground that the joint contractor, who was within the jurisdiction, had any right to have his fellow joined as defendant if the latter were without the juris- diction. The law did not deny a recovery against one joint con- tractor because his co-contractor could not be served wdth process. The non-joinder of one of several joint contractors could be availed of only by plea in abatement, and such plea must inform the plain- tiff of the names of the parties not joined, and must state that they were still Uving unless this appeared on the face of the declaration. for which a remedy might be had at law against such debtors, in case all were taken by process issued out of any court of this state, shall be answerable to their creditors separately for such debts; that is to say, such creditor or creditors may issue process against such joint debtors, and in case any of such joint debtors shall be taken and brought into court, by virtue of such process, such of them so taken and brought into court shall answer to the plaintiff or plaintiffs; and if judgment shall pass for the plaintiff or plaintiffs, he, she or thoy shall have his, her, or their judgment and execution against such of them so brought into court, and against the other joint debtor or debtors named in the process, in the same manner as if they had all been taken and brought into court by virtue of the said process." — Ed. 14S PARTIES Rice V. Shute, Burr. 2611 ; 1 Smith Load. Cas. (H. & W. ed.), *645 and notes; 1 Chit. PI. *43, 46; 2 Id. *901; INIershon v. Hobensack, 2 Zab. 372, 379; 3 Id. 580; Lieberman v. Brothers, 26 Vroom, 379; Die. Part. 11, 12. Under the ancient practice, a plaintitf who commenced his action against one only of two joint obhgors, where the other resided beyond seas, subjected himself to the risk that the action mipht be abated and he be put to the cost and delay of a new action with proceedings for outlawTy. It was principally in order to avoid this risk, anil not because of any a]:)prelu'nsion that the right of action against the resident debtor would other\\'ise be in jeopardy, that a prudent plaintiff instituted his suit against both joint deb- tors and took proceedings for outlawry, in the first instance, if one of the joint debtors was absent or absconding. In some cases, no doubt, it was deemed important to join the absentee in order either to enforce a forfeiture of his property or to avoid waiving the right to proceed against him in a subsequent action. See 1 Chit. PI. *46; per Coltman, J., in Joll v. Lord Curzon, 4 Man. Gr. & S. (C. B.) 2o5. The English practice was amended by statute 3 and 4 William IV., chapter 42, section 8, which required that a plea in abatement for non-joinder of a defendant should be accompanied by an affida- vit stating the residence in England of the omitted defendant (1 Chit. PI. *46), the practical effect of which was to prevent the resi- dent debtor from objecting to the non-joinder of his co-obligor unless the latter resided within the jurisdiction. Die, Part, rule 49, 230, 232. And see our Practice act, section 38, Pamph. L. 1903, p. 545. In our colonial times, proceedings to outlawry not being in use here, the doubt arose that is referred to in the preamble of our act of 1771, which was solved for this colony by recjuiring the resident debtor to answer, and permitting judgment to l)e taken against him and the non-resident together. (Pennsylvania adopted the simpler solution of holding that as there was no process of outlawry in civil actitms, the return of nun est inventus had the same effect. Dillman r. Schultz, 5 S. & R. 35.) The effect of our act wjis to pre- vent the abatement of the action for failure to jiroceed to outlawry against the non-resident joint debtor, and to provide that the plain- tiff might take judgment against him as well as against the debtor who wa.s served with process. . . . Even prior to tlu; adoption of the fourteenth amendment, how- ever, it waa well settled that if one; of tiuj debtors was not within BLESSING V. McLINDEN 149 the state, not served with process, and did not voluntarily appear, the judgment could not be enforced against him in any other juris- diction, even though by the lex loci a ser\ice on the co-obligor resi- dent within the jurisdiction were sufficient to authorize a judgment against all. D'Arcy v. Ketcham, 1 1 How. 165; Thompson v. Whit- man, 18 Wall. 457; Knowles v. Gas Light and Coke Co., 19 Id. 58; Hall V. Lanning, 91 U. S. 160; Hanley v. Donoghue, 116 Id. 1; Renaud v. Abbott, 116 Id. 277; Phelps v. Brewer, 9 Cush. (Mass.) 390. . . . Until the adoption of the fourteenth amendment, however, it was commonly held that a state might authorize a personal judg- ment, good within its own territory, against one who had not been subjected to the process of its courts by service of such process within the jurisdiction. But by that amendment it was (among other things) provided that no state should deprive any person of life, liberty or prop- erty without due process of law, and this was construed by the Supreme Court of the United States in Pennoj^er v. Neff , 95 U. S. 714, 733, to deprive a personal judgment of all validity, either within or without the state that rendered it, if it were rendered by a state court in an action upon a money demand against a non- resident served by a publication of notice or summons, but upon whom no personal service of process within the state had been made, and who had not appeared to the action. See Elsasser v. Haines, 23 Vroom, 10, 15; Smith v. Colloty, 40 Id. 365, 371. We deem it clear that one effect of the amendment, as thus con- strued, was to render it unlau^ul in an action against joint debtors, under our statute, to give judgment against any debtor not brought into court by \nrtue of its process, at least in case such debtor be not a citizen or resident of this state. And so our Supreme Court intimated in United States v. Griefen, 44 Vroom, 195, 197. The act, in its latest revised form, was enacted in 1874, subse- quent to the adoption of the fourteenth amendment, which oc- curred in 1868. But, upon familiar principles, the act speaks as of the time of its original enactment (Smith v. Colloty, 40 Vroom, 370, and cases cited), and therefore may be treated as having been fol- lowed by that amendment, and nullified pro tanto by it, rather than as having been subsequently enacted in the teeth of the constitu- tional prohibition. Nor is the statute, as thus amended, any the less a practical working enactment. Its primary purpose, as evidenced not only loO PARTIES by its provisions but by the original preamble in Allinson, was to subject the resident joint debtor to responsibilit}'. This object was sought to be carried out by authorizing the plaintiff to take judgment and execution " against such of them so brought into court and against the other joint debtor or debtors named in the process." Ehminating the ** other joint debtor or debtors " on the ground that they have not hoon served with process, still leaves the statute as permitting a judgment against such joint debtors as have been brought into court. The result is that where one of two joint debtors resides within this jurisdiction and the other is a non-resident, and is not found to be served with process in this state, the plaintiff may have his judgment against the resident del)tor, omitting the other. This was the practical outcome, in ordinary cases, under the common law practice of outlawry. . . . We find it unnecessary to consider whether the principle of the decision in Fennoyer v. Neff would invalidate a judgment rendered in conformity to our Joint Debtors' act against one of the several joint debtors (the others only being served with process), he being a citizen and resident of this state. See Moulin v. Insurance Com- pany, 4 Zab, 249, per Chief Justice Green. That precise question does not require decision in order that the present case may be dis- posed of. For we may properly make, and ought to make, every reasonable intendment in favor of the validity of the judgment under review, and therefore may legitimately assume, if necessary, that the defendant Quigg was not a citizen or resident of this state, and could not in any manner be rendered subject to its jurisdiction. We, therefore, find no error in the entry of judgment against the defendant McLinden alone. Whether the plaintiff, by taking judgment against one only of the joint debtors, debars himself from any future recovery against the other, is a question that does not now concern us. There .seems to be a conflict of authority ui:)()n the point. See Freem. Judg. (4th ed.), §§2.S1, 233; Big. Estop. (5th ed.) 104. The jwlgrncnt utukr review should be affirmed.^ > See IIjill I'. Liimiiiin, '.H V. S. ICO, Zi I.. (•tl I'ac. 707, 43 L. R. A. (N. K.), r>4(); and m-v 50 L. It. A. ')•»"). For th«* K''n«'rttl coiniiiori l:iw rule iw to joint oMiniitioiin, hcc I)i('cy, I'lirtics, p. 230 (rule 4*J). I'lirtifH iimy bi! at oiiC(; jtjiutl}' Jirid sivcnilly liable upon the same contruct, in which cu«e they may bo Hued cithfr jointly or Hcparately. HENRY DE BODREUGAM V. THOMAS LE ARCEDEKNE 151 HENRY DE BODREUGAM v. THOMAS LE ARCEDEKNE. Cornish Iter. 1302. [Reported Year Book 30 Edward I, 106.] Henry de Bodreugam complained by bill, that Thomas le Arcedekne tortiously and against the peace of our lord the King, came with force and arms at a certain day, year, and place, and assailed, beat, and wounded him, and his goods, &c.; and that tortiously and against the peace he took away William, son and heir of B., who was in his wardship, and to his damage, &c. — Middelton denied the tort and force, and as to its being against the peace of our lord the King, and the coming, &c.; and said that Thomas did nothing against the peace. So a jury was summoned. The Inquest said that Sir Ralph de Bloyon, on the same day as that complained of by Henry de Bodreugam, came to the inn of Thomas le Arcedekne, and there they had a long conversation; and afterwards Sir Ralph and Thomas and their followers went to the house of WiUiam Beyon, where Sir Henry was. Sir Ralph entered, together with all the others, except Thomas who did not enter, and requested Henry that he would deliver up to them an infant who was in ward to him; but Henry would not do so. Strife arose between them, and Henry was beaten and wounded, as he complains of having been. — Brumpton. What right had Sir Henry to the wardship ? — The Inquest. None, save the wardship of the infant by virtue of his mother having deHvered him (to Henry) in consequence of a disagreement between Sir Ralph and the mother. — Brumpton. After the fact, where did they go ? — The Inquest. To the house of Thomas, and there the infant remained full three days afterwards. — Middelton. Sir, bear in mind that Sir Thomas did not beat or wound, as stated in the plaint. — Spigonel. If three thieves come to a man's house, and one forces and enters the house, and the other two stand outside in the meantime, they shall all three be taken and convicted of this, whatever judgment you may think will be Dicey, Parties, p. 233 (rule 50). But more than one and less than all should not be joined. In some states the codes provide that where two or more persons are jointly bound by contract, the action thereon may be brought against all or any of them at the plaintiff's option. See Pomeroy, Code Remedies, 4th ed., pp. 81, 288. — Ed. 152 PARTIES passed on the two. — Middelton. It is different in case of burglary or appeal of death of a man, from what it would be in tr(^s])ass. — Brumptox. Go on now to the damages, and tell us if tiiev carried away any goods or armour, &c. — The Inquest. They tlid not carry away any chattels, but we assess his damages at one hundred marks. — Middelton. Sir, there are others who committed the trespass, and against whom the plaintiff can recover; we entreat you to take this into consideration. — Brumpton. Know that none of the others shall ever take exception by reason of this judgment for he has his action against each one, and each one is liable to the whole, and he shall recover his damages against each one severally, if he choose to sue him; and forasmuch as he is convicted by having gone armed in company with Sir Ralph, and his followers entered the house as before-mentioned, thereby it well appears that he was an assenting party to what took place, and we consider him altogether as a principal, and the Court adjudges that Henry do recover his damages, wliich are assessed at a hundred marks, and that Sir Thomas do go to prison.^ . . . MITCHELL V. TARBUTT and Others. King's Bench. 1794. (Reported 5 Term Reports, 649.] This was an action on the case for negligence, wherein the decla- ration stated, That whereas one J. Jones and one G. Bolland, at the time of committing the grievance therein after mentioned, were possessed of a certain ship called the Albion, which was then pro- ceeding on a voyage from Jamaica to Bristol, and that there were then on ixjard the said ship (iOO hds. of sugar belonging to the plain- tiff; and that whereas the said G. Tarbutt, N. A., J. H., D. T. and J. E. Cthe defendants), were at the time when, Cusli. (M:i.s.s.), r,'.)2, r,> Am. Dec. 71"); Ii<'\vctt v. Swift, 3 Allen (Miihw.), 420; Miiybcrry v. Northrm Tac. Jty. Co., 100 Minn. 7'.», 110 N. W. '.i'A, 12 L. K. A. (n. h.), 07.'), 10 Ann. Cjw. 754; Krcnchr. Central Const ruction Co., 70 Oh. St. rm, si N. K. 7rA, 12 L. 11. a. (n. h.), WH); Dicey, TarticH, pp. 441, 4«.'>; CtK)l('y, TortH, M «1., p. 241. — Kd. ' A part of tin* opinion in omitted. Tlie judgment wiw reverHcd and the caUKc* reniiuided for u new trial becau«<; of erroneoiirt inntructions, — Ku. CITY OF PEORIA V. SIMPSON 161 The amended declaration contains an averment the opening was covered \\'ith a wooden door, of a height and length prohibited by an ordinance of the city, and that such doors were at the time, and prior thereto had been, a nuisance, and that the city had notice thereof. Separate demurrers filed by each defendant were over- ruled by the court, and thereupon pleas of not guilty were filed by each defendant. A trial was had before a jury, who returned a verdict finding the issues for plaintiff, and assessing his damages at S6000. Motions for a new trial and in arrest of judgment were severally overruled, and the court entered judgment on the ver- dict. That judgment was afterwards affirmed in the Appellate Court for the Second District. The case comes to this court on the appeal of the city of Peoria, and since then defendant Dens- berger has also assigned errors on the same record. . . . A question not entirely free from doubt is, can the owner of the premises and the city be held jointly liable for the injuries to plain- tiff in the same action. It is said this question cannot now be con- sidered, for the reason defendants did not stand by their demurrers, the rule being familiar that a party may not at the same time plead and demur to the same pleading. It is also true any substantial defect in a declaration can always be taken advantage of by a motion in arrest of judgment, and that was done in this case. It will be observed both defendants are charged with negligence as to the condition of the sidewalk that occasioned the injury to plaintiff, and why may they not be jointly liable in the same ac- tion ? The owner is liable, if at all, because the premises were let with the nuisance upon them, and that liability, if any existed, continued, not^vithstanding the possession of the tenant, and con- tinued up to the time of the accident. On the hypothesis the city had notice, it was the duty of the municipal authorities to make repairs at and before the injury to plaintiff. The same duty rested upon the owner and the municipahty, at the same time, to make such repairs, and both may therefore be said to be guilty of negli- gence in respect to the same thing. Had the action been brought against the owner and the tenant, no doubt it could have been maintained had it been averred and proved both were under obli- gations to make repairs, and both were guilty of negligenct- in that respect. The averment is, it was the duty of both the owner and the municipality to repair the sidewalk, and both are charged with the omission of a common duty in that regard, — and what reason is there why they may not be joined in the same action ? Un- doubtedly the rule is, for separate acts of trespass separately done, 162 P.UtTlES or for positive acts negligently done, although a single injury is in- flicted, tlie parties can not be jointly held liable to the party in- jured. If there is no concert of action — no common intent — there is no joint liability. This rule is very well settled by author- ity: Hilliard on Torts, sec, 10, p. 315; Nav. Railroad and Coal Co. r. Kicliards, 57 Pa. St. 142; Shearman & Hedfield on Negli- gence, 58; Bard v. Yohn, 26 Pa. St. 482. But a different ])rineiple applies where the injury is the result of a neglect to perform a common duty resting on two or more persons, although there may be no concert of action between them. In such cases the party injured may have his election to sue all parties o^\•ing the common duty, or each separateh% treating the liability as joint or separate. A familiar case illustrating the principle is, where a person is injured by the falling of a party wall erected on the divichng line between two lots owned by different persons, the action is maintainable jointly against both owners. It is for the reason it was a common duty of both owners to make the repairs. Another instance is, where a passenger is injured by a negligent collision of the trains of two railroad companies, he may maintain one action against both. And so it has been held an action may be maintained jointly against towns, where the law will authorize such an action, for an injury resulting from the insufficiency of a bridge which both towns are under an obligation to maintain. Klauder v. McGrath, 36 Pa. St. 128; Colegrovc v. N. Y., B. N. and N. H. R. R. Co., 6 Duer, 382; Same v. Same, 6 Smith (N. Y.), 492; Peckham v. Burlington, 1 Vt. 34. In liryant v. Bigelow Carjiet Co., 1 Ma.ss. 491, it was held, where the negligent acts of two de- fendants combined to produce the injury to plaintiff, a joint action could be maintained against ])()th negligent jiarties. It will be seen the rule rcc-ognized rests on sound principle, — that is, where an injury results from the concurrent negligence of several persons, all being under a common duty to observe care, though that duty is separate with referenc(; to that which causes the injury, all are jointly liabl(\ Ai)plying this princi])le to the case being considered, it would seem to beconclusiveas to the pi)int made, the city and th(5 owner are not jointly liai)lo for the injury to plaintiff. If it shall be ascertained it wjis the duty of both the owner and the city to keep the sidewalk in repair, then the failure to do ho wiis a common neglect, and tli(! case* comes pre- ciwly within the; principh; slated. Whether both or either party wiw under such duty, depends on facts to b<; found by the jury in the trial court. SUMNER V. TILESTON 163 As respects the point suggested whether the city could recover against the owner in case it was compelled to pay the judgment, is a question that does not affect the principle being considered. How the law may be on that subject need not now be determined. It is a question in which plaintiff can have no interest. As was said in Bryant v. Bigelow Carpet Co., supra, the question of their relative rights and liabilities will be left to future litigation or adjustment between defendants. It is enough that it appears both defendants may have been guilty of negligence in regard to that which caused the injury to plaintiff, to enable him to maintain his action against them jointly. . . . Judgment reversed.^ SUMNER V. TILESTON et al Supreme Judicial Court of Massachusetts. 1826. [Reported 4 Pickering, 308.] This was an action of the case against E. Tileston, M. Hollings- worth and A. Fuller. The declaration alleged that the defendants wrongfully did erect " a certain dam " in and across Neponset river and " did shorten and heighten their said dam," by means whereof the water was penned up so as to flow back and obstruct the wheels of the plaintiff's mills. The defendants pleaded jointly the general issue and the statute of limitations. At an adjourned session of this Court in June 1826, Tileston and Hollingsworth pleaded in abatement the death of Fuller since the adjournment in February preceding; to which plea the plaintiff demurred. Putnam, J., delivered the opinion of the Court. It seems to be settled, that where only one tenant in common of real estate is 1 Kansas City v. File, 60 Kan. 157, 55 Pao. 877 (action against electric light company and city); Fortmeyer v. National Biscuit Co., 116 Minn. 158, 133 N. W. 461, 37 L. R. A. (n. s.), 569 (action against lessor, lessee and city), accord. But see Mooncy r. Edison Electric Illuminating Co., 185 Mass. 547, 70 N. E. 933 (action again.st electric light company and street railway for violation of common law duty and against city for violation of statutory duty) ; Village of Mineral City v. Gilbow, 81 Oh. St. 263, 90 N. E. 800, 25 L. R. A. (n. s.), 627 (action against land owner and village); Dutton v. Lansdowne Borough, 198 Pa. 563, 48 Atl. 494, 53 L. R. A. 469, 82 .\m. St. Rep. 814 (action against land owner and borough). It is not necessary to join all who owe the duty to the plaintiff. City of Topeka v. Sherwood, 39 Kan. 690, 18 Pac. 933. — Ed. 1 64 PARTIES sued in trespass for anythin*^ done in rop;ard to the estate in com- mon, he may plead tliat matter in abatement, 1 Chit, PI. 71, 6th Amer. ed., 95, 96, 100; and the counsel for the defendants contend that this rule ajiplies to the case at bar. We think however that it should appear from the pleadings, that the defendants Avere charged by reason of their holding certain real estate as joint tenants or tenants in common. In the case cited from 7 H. 4. 8. the defendant, the abbot of Stratford, was sued for not repairing a wall upon the bank of the Thames, which he ought to have repaired by reason of his holding certain land, for the default of reparation whereof the lands of the plaintiff were overflowed. But in the case at bar it does not appear that the defendants are charged as tenants in common or as joint tenants. The plain- tiff declares that they have wrongfully prevented the water from running off from his mills, by making a dam below across the river, and to this the defendants plead the general issue. It does not appear that their defence depended upon the title to the land where the plaintiff alleges that they built the dam, and it may turn out on the trial, that they defend on the ground that they never did the act of which the plaintiff complains. The plaintiff charges them as AVTongdoers. The action is merely ex delicto, and the title of the defendants would not be affected by a verdict upon the issue. The plea in abatement states that one of the defendants died after the adjournment from February and before the sittings in June. Now that fact is immaterial, because in actions for torts the plea of the general issue by many defendants is in its legal effect several. One only or more may be convicted and the rest acquitted or they may be all convicted or all acquitted. See Chitty's PL, Cth Amer. ed., 99. We are of opinion that the death of one under these circumstances is not a sufficient cause to prevent the plaintiff from proceeding against the others. See Revised Stat., c. 93, § 12. h'cspondcas ouster. ^ » SeeLowi;. Mumfor.l, 1 » J.-iiiis. (X. \.), rit;; 1 Wins. Sniind. 'J<)1 f and r; Dicey, Parties, p. 4.'JS. A.s to non-joirulcr of dcfctulants wlicn the; tort is connccti-*! w itii a rontract, Beo 1 WiiiH. Saund, '2'M v and f; Dicey, Parties, p. 4:i7. As to actions a^cainst common carriirs, iim-kccpi-rs, vlr., founded on the custom of tlie realm, see Uoulhton i;. Sundifcird, Skin. 278. — Ku. RULES OF THE SUPREME COURT (eNGLANd) 165 Rules of the Supreme Court, 1883 (England), Order XVI. Rule 1.^ All persons may be joined in one action as plaintiffs, in whom any right to relief [in respect of or arising out of the same transaction or series of transactions] is alleged to exist, whether jointly, severally, or in the alternative, [where if such persons brought separate actions any common question of law or fact would arise; provided that, if upon the application of any defendant it shall appear that such joinder may embarrass or delay the trial of the action, the Court or a Judge may order separate trials, or make such other order as may be expedient], and judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment. But the defendant, though unsuccessful, shall be entitled to his costs occasioned by so joining any person who shall not be found entitled to relief unless the Court or a Judge in disposing of the costs shall otherwise direct. Rule 2. Where an action has been commenced in the name of the wrong person as plaintiff, or where it is doubtful whether it has been commenced in the name of the right plaintiff, the Court or a Judge may, if satisfied that it has been so commenced through a hond-fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as may be just. Rule 3. Where in an action any person has been improperly or unnecessarily joined as a co-plaintiff, and a defendant has set up a counterclaim or set off, he may obtain the benefit thereof by establishing his set-off or counterclaim as against the parties other than the co-plaintiff so joined, notwithstanding the misjoinder of such plaintiff or any proceeding consequent thereon. Rule 4. All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative. And judgment may be given against such one or more of the defendants as may be found to be hable, accord- ing to their respective liabilities, without any amendment. Rule 5. It shall not be necessary that every defendant shall be interested as to all the relief prayed for, or as to every cause of action included in any proceeding against him; but the Court or a Judge may make such order as may appear just to prevent any defendant from being embarrassed or put to expense by being * The words included within the brackets formed no part of the rule until 1896. 166 PARTIES required to attend any proceedings in which he may have no interest. Rule 6. The plaintiff may, at his option, join as parties to the same action all or any of the ])orsons severally, or jointly and sever- ally liable on any one contract, including parties to bills of exchange and promissory notes. Rule 7. Whore the plaintiff is in doubt as to the person from whom he is entitled to redress, he may, in such manner as herein- after mentioned, or as may be prescribed by any special order, join two or more tlefendants, to the intent that the question as to which, if any, of the defentlants is liable, and to what extent, may be de- termined as between all parties. Rule 8. Trustees, executors, and administrators may sue and be sued on behalf of or as representing the j)roperty or estate of which they are trustees or representatives, without joining any of the persons beneficially interested in the trust or estate, and shall be considered as representing such persons; but the Court or a Judge may, at any stage of the proceedings, order any of such per- sons to be made parties, either in addition to or in lieu of the pre- viously existing parties. [This rule shall apply to trustees, executors and administrators, sued in proceedings to enforce a security by foreclosure or other- wise.] Rule 9. Where there are numerous persons having the same interest in one cause or matter, one or more of such jiersons may sue or be sued, or may be authorized by the Court or a Judge to defend in such cause or matter, on behalf or for the benefit of all persons so interested. Rule 11. No cause or matter shall l)e defeated l)y reason of the misjoinder or nonjoinder of parties, and the Court may in every cause or matter deal with the matter in controversy so far as re- gards the rights and interests of the jxirtics actually before it. The Court or a Judge may, at any stage of tlie i)roceedings, either uj)on or without the applieation of either parly, and on such terms as may appear to the C'tMirt or a Judge to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defend- ants, bo struck out, and tliat the n.aines of any |)arlies, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court may be necessar\- \\\ order to enable the Court efleetually and completely to adjudicate upon and settle all the qu(!stions involved in the cause or matter, be added. No j)er- 8on shall be added as a plaintiff suing without a next friend, or as OHIO GENERAL CODE 167 the next friend of a plaintiff under any disability, without his own consent in writing thereto. Every party whose name is so added as defendant shall be served with a writ of summons or notice in manner hereinafter mentioned, or in such manner as may be pre- scribed by any special order, and the proceedings as against such party shall be deemed to have begun only on the service of such writ or notice. Rule 12. Any application to add or strike out or substitute a plaintiff or defendant may be made to the Court or a Judge at any time before trial by motion or summons, or at the trial of the action in a summary manner. Rule 13. Where a defendant is added or substituted, the plain- tiff shall, unless otherwise ordered by the Court or a Judge, file an amended copy of and sue out a writ of summons, and serve such new defendant with such writ or notice in lieu of service thereof in the same manner as original defendants are served. Ohio General Code. Sec. 11241 (25, 26).^ An action must be prosecuted in the name of the real party in interest, except as provided in the next three succeeding sections.^ When a party asks that he may recover by virtue of an assignment, the right of set-off, counterclaim and defense, as allowed by law, shall not be impaired. Sec. 11244 (27). An executor, administrator, or guardian, a trustee of an express trust, a person with whom, or in whose name, a contract is made for the benefit of another, or a person expressly authorized by statute, may bring an action without joining with him the person for whose benefit it is prosecuted. Officers may sue and be sued in such name as is authorized by law. Sec. 11254 (34). All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs except as otherwise provided. Sec. 11255 (35). Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of a question involved therein. Sec. 11256 (36). Parties who are united in interest must be joined, as plaintiffs or defendants. If the consent of one who ^ The figures in parentheses are the section numbers of the Ohio Code of F*rocedure as originally adopted. * The next two succeeding sections relate to suits on forfeited bonds. 168 PARTIES should be joined as plaintiff cannot be obtained, or, he is insane, and the consent of his guardian is not obtainable, or he has no guardian, and that fact is stated in the petition, he may be made a defendant. Sec. 11257 (37). When the question is one of a common or general interest of many persons, or the parties are very numerous, anil [it] is impractical)le to bring them all before the court, one or more may sue or defend for the benefit of all. Sec. 11258 (38). One or more of the persons severally liable on an instrument may be included in the same action thereon. Sec. 11259. Parties to a written instrument by initial letter, or a contraction of the name, may be so designated in an action thereon. Sec. 11260. A partnership formed for the purpose of carrying on a trade or business in this state, or holding property therein, may sue or be sued by the usual or ordinary name which it has assumed, or by which it is known. In such case it shall not be necessary to allege or prove the names of its individual members. Sec. 112()2 (40). The court may determine any controversy be- tween parties before it, when it can be done without prejudice to the rights of others, or by saving their rights. When such deter- mination cannot be had without the presence of other parties, the court may order them to be brought in, or dismiss the action with- out prejudice. Sec. 11263 (41). In an action for the recovery of real or per- sonal property, a person claiming an interest in the property, on his application, may be made a party. Sec. 11583 (371). Judgment may be given for or against one or more of several plaintilTs and for or Jigainst one or more of several defendants. By the judgment, the court -may determine the final rights of the parties on either side, as l)(>tween themselves, and grant to the defendant any affirmative relief to which he is entitled. Sec. 1158-1 (371 ). In an action against several defendants, the court may render judgment against one or more of them, leaving the action to proceed against the others, whenever a several action is proper. the new jersey practice act 169 The New Jersey Practice Act (1912).^ 4. Subject to rules,^ all persons claiming an interest in the sub- ject of the action and in obtaining the judgment demanded, either jointly, severally or in the alternative, may join as plaintiffs, except as other\vise herein provided. And persons interested in separate causes of action may join if the causes of action have a common question of law or fact and arose out of the same transaction or series of transactions. 5. If one who may join as plaintiff declines to do so, he may be made a defendant, the reason therefor being stated in the complaint. 6. Subject to rules,^ any person may be made a defendant, who, either jointly, severally or in the alternative, is alleged to have or claim an interest in the controversy, or in any part thereof, adverse to the plaintiff, or whom it is necessary to make a party for the complete determination or settlement of any question involved therein. The plaintiff may join separate causes of action against several defendants if the causes of action have a common question of law or fact and arose out of the same transaction or series of transac- tions. 7. An executor, administrator, or trustee, of an express trust (including one wdth whom a contract is made for the benefit of another) may sue or be sued without joining the person beneficially interested in the suit. 8. The court may determine the controversy as between the parties before it, where it can do so without prejudice to the rights 1 N. J. Pamph. L. 1912, p. 378. 2 Rule 6 in the schedule attached to the Act pro\ades that " In suits on a joint contract, whether partnership or otherwise, the personal representatives of a deceased co-contractor may join, as plaintiffs, and be joined, as defendants, with the survivors or survivor; provided, that where the estate of the decedent is in settlement in this State, as an insolvent estate, his personal representa- tives cannot be joined as defendants." — Ed. ' Rule 7 provides that " Persons severally and immediately liable on the same obligation or instrument, including parties to bills of exchange and promissory notes; also indorsers, guarantors, and siu"eties, whether on the same or by a separate instrument, may all, or any of them, be joined as defend- ants, and a joint judgment may be rendered against those so joined. . . ." Rule 8 provides that " Persons may be joined as defendants against whom the right to rehef is alleged to exist in the alternative, although a right to rehef against one may be inconsistent with a right to relief against the other." — Ed. 170 PARTIES of others; but where a complete termination cannot be had without the presence of other parties, the court may direct them to be brought in. Where a person, not a party, has an interest or title which the judgment will affect, the court, on his appUcation, shall direct him to be made a party. 9. No action shall be defeated by the non-joinder or misjoinder of parties. New parties may be added and parties misjoined may be dropped, by order of the court, at any stage of the cause, as the ends of justice may require. 10. No change in parties, made by order of court, shall impair any previous attachment of the estate or body of any person re- maining a defendant in the action; nor impair bonds or recogniz- ances of any person remaining a party, either as against himself or his sureties; nor impair receipts to an officer for property attached; and, when parties are changed, the court may order new bonds if such new bonds are deemed necessary. Orders of court concerning change in parties may be upon terms at the discretion of the court. CHAPTER VI. PLEADING. Section I. Demurrers. [Form of General Demurrer.] ^ In the Court of the County of , State of C. D. 1 And the defendant by X. Y., his attorney, says that the ats. \ said declaration [or the said count of the said dec- A. B. J laration] is not sufficient in law. X. Y., Attorney for Defendant. MOORE V. HOBBS and BUSH. Supreme Court of North Carolina. 1878. [Reported 79 North Carolina, 535.] Civil Action tried at Spring Term, 1878, of Chowan Superior Court, before Furches, J. The plaintiff complains : — 1. That the defendants are indebted to him in the sum of S488.70 at eight per cent interest per annum from the 1st day of December, 1875. 2. That no part of said debt has been paid. 3. Therefore the plaintiff demands judgment against the de- fendants (for said sum) and costs. The defendants demur : — Because the facts stated in said complaint are insufficient to constitute a cause of action, in that, it does not contain a plain and concise statement of the facts constituting the plaintiff's cause of action. ^ The following is a form of joinder in demurrer (now generally dispensed with): " (Title of cause.) " The plaintiff says that the declaration is sufficient." For the more complex forms formerly in use, see Tidd, Forms, 4th ed., 270. — Ed. 171 172 PLEADING The Court overruled the demurrer and offered to allow the de- fendants to answer, which they refused to do. Thereupon judg- ment was rendered ujxjn the complaint in favor of the plaintiff for the sum demanded, and the defendants appealed. Reade, J.^ "A declaration is a specification in a methodical and legal form of the circumstances which constitute the plaintiff's cause of action." 1 Chitty, PI., 240. Observe, that it is not to state that there is a cause of action, but the " circumstances " which constitute the cause of action. " The general requisites or qualities of a declaration are, . . . Second, that it contain a state- ment of all the facts necessary in point of law to sustain the action, and no more; third, that these circumstances be set forth with certainty and truth." 1 Chitty, PI., 244. Observe again, that "all the facts " are to be set forth. If a declaration in debt be upon simple contract, the consideration must be set forth with the other facts. If it be upon a specialty, the specialty must be set forth, and that imports a consideration. Chitty, PI., 302, 363. The form of a declaration on simple contract is as follows: A. B., the plaintiff in this suit . . . complains of C. D., the defendant, in this suit . . . for that, whereas the defendant on — was indebted to the plaintiff in $ — for the price and value of goods then sold and delivered by the plaintiff to the defendant at his request, &c., or for the price and value of work then done, &c., or for mone}' lent, &c. Arch. X. P., 297. The form of a declaration on specialty is as follows: — A. B., the plaintiff, &c., complains, &c. Whereas, the defendant, &c., by his certain writing ol)ligatory sealed with his seal, and now shown to the Court, &c., acknowleilged himself to be held and firml}' ijound unto the plaintiff in the sum of $ — , «&;c- Arch. N. P., 304. A defect in the declaration appearing on the face of it could be taken advantage of by demurrer. It is i)lain therefore that under the former mode of pleading, the declaration in this ciuse i.s fatally defective. It states a cause of action, viz., indel)tedness: but it states not one single " circum- stance " or " fact " constituting the cause. But then it is said, " that all the forms of pleading licretoforc existing are al)olished." C C. P., § 91. Tru(,', but still, all form is not al)()lislK'd, for the same C. C. P., §§ 91, 92, prescribes, " that the complaint shall con- tain a plain and concise statement of the facts constituting the caa.se of action witlujut unncc(;ssary repetition, and each material allegation shall be distinctly numbered." ' A p:irt of tlic opinion i.s oiiiitt. EICHLIN V. HOLLAND TRAMWAY COMPANY 173 Observe, that in the new, as in the old form, the facts constituting the cause of action must be stated, with this addition in the new over the old, that each material fact shall be separately numbered. The object of the declaration in the old forms was to inform the defendant fully as to the facts, so that he might make his defence both b}'' the proper pleas and by proofs, and that the jury and the Court might see what they had to try and to decide. This was not a matter of mere form, but of substance. And there has been no relaxation of the requisite in the new form, and no alteration from the old, except to require the greater particularity of separately numbering every material fact. Why require them to be num- bered if they are not required to be stated ? There is not in this case a single fact stated to show whether the complaint is on a simple contract for goods sold and delivered, or for work and labor, or for money lent, or for any like matter, or whether it is upon a bond or other specialty, or whether it be not for some alleged tort. . . . Reversed and remanded; the plaintiff to pay, and the defendants to recover costs in this Court. Per Curiam. Jvdgment accordingly.^ EICHLIN et ux. v. THE HOLLAND TRAMWAY COMPANY et al. Supreme Court of New Jersey. 1902. [Reported 68 New Jersey Law, 78.] On demurrer to yiarr. Before Gummere, Chief Justice, and Justices Van Syckel, Garrison and Garretson. Garrison, J. The demurrer filed to the declaration cannot be sustained. That pleading is, it is true, redundant to the point of embarrassing the issue, but inasmuch as it sets out a cause of action it is good upon general demurrer. The gist of the action shown is that the defendants maintained in the highway things that were at once a public nuisance, and the actual cause of private injury of a phj^sical nature to the plaintiffs. ' Even under the codes in many jurisdictions, a complaint alleging simply an indebtedness for goods sold, money paid, etc., analogous to a declaration at common law on the common counts, is good. Allen v. Patterson, 7 N. Y. 476. But see Bowen v. Emmerson, 3 Ore. 452. See Ames, Cases on Pleading, ed. of 1905, 314; Pomeroy, Code Remedies, 4th ed., p. 584. — Ed. 174 PLEADING Tliis answers all of the causes assigned for demurrer that have any substance. Judgment upon demurrer is given for the plaintiffs.^ HARTFORD BANK v. GREEN, THOMAS & CO. Supreme Court of Iowa. 1861. [Reported 11 loiva, 476.) Baldwin, J.^ The plaintiff seeks to recover of Key, Foster, et al., as makers, and of Green, Thomas & Co., as indorsers, of a promissory note which reads as follows: Burlington, Dec. 5th, 1857. Twelve months after date we promise to pay to the order of Green, Thomas & Co., one thousand dollars currency, value received ^\^th ten per cent interest after maturity. (Signed) Charles Foster, A. Key, and others. (Indorsed) Green, Thomas & Co. In order to show such diligence against the makers as to charge the indorsers, the plaintiff in the petition alleges that the defend- ants by their said undertaking agreed to pay said note at the city of Burlington, at the maturity thereof. It is further averred that when said note became due, " it was duly presented for payment at the Banking House of Coolbaugh & Brooks, in said city, and notice of non-payment given to the makers thereof b}' notices de- posited in the jx)st-office of said city; that none of the makers thereof could be found in said city to whom said note could be pre- sented for payment; nor had any of said makers any known place of residence in said city, diligent inquiry having been made to ascertain the same." Copies of the note and the i)rotcsts are annexed to and made a part of the i)etition. The note is dated at Burlington, but is not made }):iy;il)le at any particular place. The defendants, Green, Thomas & Co., de- > Sof Tucker V. Rnnrlall, 2 Ma.s.s. 28.3. Iti Mfuri r. .Vycrs, tl? .Mc 1^2, p. ISS, the court said: " A dciiiurnT com- jjluin.s of too little und uot Uh> iiiucli matter in a declaration. Tiu' iiiaxiiii utile jKT inuLilc nan vilUiUir u|)i)lie.s. The remedy may be to move to Htrike out or nidiicc um;le«« und redundant allenutions. Ui>on inspection, the court may order it to In; done." — Va>. * A part of the opinion ia omitted. — Ed. FIRST NAT. BANK OF ANOKA V. ST. CROIX BOOM CORP. 175 murred to this petition, alleging as a cause therefor, a variance between the note described in the petition and the copy annexed thereto. This being sustained the plaintiff appeals. It is claimed by the appellants that as the petition charges that the note was made payable at the city of Burlington, the defendants by their demurrer admit the truth of the allegation thus made, and are estopped thereby from saying that the note was not properly presented so as to charge the indorsers. A demurrer only admits such facts to be true as are well pleaded. The plaintiffs in order to recover as against the indorsers must show due diligence against the makers. The plaintiff in the petition sets forth the diligence used, and the note being made payable at no particular place it was therefore payable at the residence or place of business of the makers. The diligence used becomes a question of law, and if all the diligence used by the holder is set out in the petition it can be determined upon demurrer as well as other- wise whether the indorsers are liable or not. The copy of the note contradicts the allegation in the petition, that it was made payable in the city of Burlington. No place of pa>Tiient is designated in the note; nor is it alleged that there was any subsequent agreement between the parties that it should be paid in said city. In the absence of any place being designated where the same is payable, the law fixes such place at the residence, or place of business, of the makers. The plaintiff does not show that such place of residence was not within the state or unknoAvn to the holder. It barely shows that it could not be found in the city of Burlington, and that the inquir}' was confined to that place alone; and none even was made of the indorsers thereon who were residents of said city. . . . Judgment affirmed} FIRST NATIONAL BANK OF ANOKA v. ST. CROIX BOOM CORPORATION. Supreme Court of Minnesota. 1889. [Reported 41 Minnesota, 141.] Appeal by defendant from an order of the municipal court of Stillwater, overruling its demurrer to the complaint in an action for the conversion of 17,000 feet of logs of the value of $136. By the Court. The only allegation in the complaint as to plain- tiff's right to or interest in the property alleged to have been wrong- ' As to repugnancy in immaterial allegations, see Stephen, Pleading, Will, ed., *4I4. — Ed. 176 PLEADING fully converted is " that the plaintiff, in the regular course of business, and to effect the payment of money already loaned and a debt owing, took an assignment of the logs marked F. D. A., and of the logs bearing said marks, on or about the 9th of February, 1884, and then and thereby became, and ever since luis continued to be, the owner of all the logs bearing said mark." The pleader might have contented himself with a general allegation of owner- ship, but he has attemptetl to set out all the facts by which the plaintiff became the owner, and then the general result following from those facts. In such a form of pleading the particular facts alleged will control, and, if they do not sustain the result reached, the pleading is bad. Pinney v. Fridlcy, 9 Mirm. 23, (34.) In this case there are no facts alleged to support the conclusion that the plaintiff l)ecame the owner of the logs. It is not alleged by whom or to whom the money was loaned or the debt was owing, or from whom the assignment was taken, or that the party from whom taken had any interest in the logs. In fact it would appear that the pleader had studiously avoided alleging any material fact. The complaint, therefore, did not state a cause of action. The second objection to the complaint, viz., that it does not state the particular acts constituting the allegetl conversion, is not well taken. This is not necessary. A general allegation that the defendant has wrongfully converted the property is sufficient; but on the first ground the demurrer should have been sustained. Order reversed.^ LYDECKER v. ST. PAUL CITY RAILWAY COMPANY. Supreme Couut of Minnesota. 1895. [Reported (H Minnesota, \\\.\ Appeal by plaintiff from an order of the district court for Ram- sey county. Brill, J., sustaining a (Iciiiurrcr to the cumplairit. Affirmed. The complaint alleged in substance that plaintiff was a passenger on defendant's electric street car; that on approaching the cross street wlu^re he wished tf) alight, he notifie(l th(> conductor, who Higrialled th(; motoriiiaii to stop; that in conseciueiice, and for the purpose of .stopping on the farther side of sai)., 'i:\ It. I. l.'.O, .'»() .\ti. Stl, ac- mnl \.\t. LYDECKER V. ST. PAUL CITY RAILWAY COMPANY 177 man reduced the speed of the car; that at a point in the middle of said street and while the car was running at a low rate of speed, to- wit, at a speed safe for a passenger to step from the same and not exceeding two miles an hour, plaintiff stepped from the car and started to pass around the rear end, and without expecting or looking for a car on the other track, by reason of the facts above stated, started directly to cross the other track; that as he was in the act of stepping thereon a car from the opposite direction, run- ning at the rate of six miles an hour, struck and injured plaintiff; that he heard no bell rung from said car, and that plaintiff received said injury solely by reason of said carelessness and negligence of defendant. AIiTCHELL, J. It is clear from the most casual inspection of the complaint that it does not state a cause of action. No act of negli- gence on part of defendant is alleged. It is alleged that the car which struck the plaintiff was rumiing at the rate of six miles an hour; also that plaintiff heard no bell rung on the car; but there is no allegation that six miles an hour was an improper or unlawful rate of speed, or that no bell was in fact rung. Counsel for defendant ask us to further hold that the complaint is insufficient because it affirmatively appears that plaintiff himself was guilty of contributory negligence. We cannot so hold. Con- tributor}' negligence is a matter of defense. Hence the question is not whether plaintiff has sufficiently negatived his own negligence, but whether it conclusively appears, as a matter of law, from the facts stated in his complaint, that he was guilty of contributory negligence. While the admissions in the complaint may point very strongly to negligence on part of the plaintiff, yet we do not think they come up to the required test. The question may become a question of law after the evidence is all in, but it is not such on the pleadings. Order affirmed.^ 1 See Town of Salem v. Goller, 76 Ind. 291. In Chesapeake & Ohio Ry. Co. v. Swartz, 115 Va. 723, p. 729, 80 S. E. 568, the court said " Assumption of risk and contributory negligence are matters of defense, and the fact that a plaintiff has not assumed the one or been guilty of the other need not be averred. It is nevertheless true that where a declaration shows that the plaintiff has assumed the risk, or been guilty of contributory negligence, it will be held bad on demurrer." In jurisdictions which require the plaintiff in his declaration to allege his own due care, a failure to make such an allegation of course renders the dec- laration demurrable. A declaration which discloses on its face the defense of accord and satisfac- tion is demurral)lc. Paulson v. Ward County, 23 N. D. 601, 137 N. W. 486, 42 L. R. A. (.\.s.), 111. — Ed. 178 PLEADING TROTTER et al. v. MUTUAL RESERVE FUND LIFE ASS'N et al. Supreme Court of South Dakota. 1897. [Reported 9 South Dakota, 596.] Action to recover on a policy of life insurance. Defendants' demurrer to the complaint was overruled, and they appeal. Affirmed. The plaintiffs, as the next of kin of the insured, bring this action, alleging that the policy sued on was executed by the defendant comijany, that the other defendant, the administrator of the insuretl, released the defendant company, but that the release was procured by the fraud of the defendant company and of the admin- istrator, and that the administrator refused to sue the defendant company. The defentlant company tlemurs to the comi)laint on the ground that it tloes not state facts suJ0&cient to constitute a cause of action.' Haney, J. . . . The release is a matter of defense, which should not have been mentioned in the complaint. The allegations relat- ing thereto must be construed together, and, if stated in an answer, would certainly constitute no bar to plaintiffs' recovery. They do not defeat plaintiffs' right of action. They are inoperative and useless, and should be disregarded as surplusage. Phil. Code PI. § 133. Without them we have a debt due the estate of S5000, upon which the administrator refuses to bring suit. We think the complaint states a cause of action, and that the order overruling the demurrer should be aflirmed. It is so ordered. WALL, Admx., i'. THE CHESAPEAKE AND OHIO RAILROAD COMPANY. Supreme Court of Illinois. 1002. [Ileported 200 lUirum, m.\ Wilkin, .1.^ This suit was Ix-guii by i)laiiitifT in error to recover damages for occiusioning the death of licr intestate, ju< it is alleged, by rea«on of the negligence of the defeiulaiit iti error. To a second anicmded (leclanitioii coiitaiiruig twelve counts, tiled on .lanuary 5, ' The HtiiUrrncrit of f.-ict.s i.s t.ikiii froiii flic opinion !inil i.s iil (ridded, iind a pari of the opinion, toKCtluT with tlic (liH.scntiiiKi'piuiuu . * A purt of the upiniuD i« oinittod. — Eu. WALL. v. CHESAPEAKE AND OHIO RAILROAD COMPANY 179 1900, the court sustained a general demurrer, and plaintiff having elected to stand by her declaration as amended, and judgment for costs having been rendered against her, she appealed to the Appel- late Court for the First District, where the judgment below was affirmed, and the case is brought to this court upon writ of error. The question is one of pleading. Plaintiff in error iasists that the court erred in sustaining the demurrer. The first four counts of the declaration are alike, except the allegations as to the place where the injury was received, and they allege, in substance, that the deceased, on May 24, 1896, while accompanying a train carrying live stock and passing through the city of Cincinnati, and while he was riding on the top of one of the cars, there being no safe place provided by the company for him to ride, was struck by a bridge or viaduct which crossed over the track and was greatly injured, resulting in his death. The negligence averred is, that the defend- ant failed to furnish him a safe place in which to ride while caring for the live stock, and failed to warn him of the danger he incurred in so riding in the place provided for him to ride, namely, on the top of the cars. From the face of the declaration it appears that more than two years elapsed from the time of the injury to the bringing of the suit, and it is insisted by defendant in error that therefore the action could not be sustained, and hence the defense of the Statute of Limitations could be made by demurrer. Mainly on this ground it is insisted the trial court properly sustained the demurrer. In equity, where it appears on the face of the bill that the cause of action is barred by laches or the Statutes of Limitations, the defect may be reached by demurrer to the bill. But the rule is otherwise in common law pleading. The defendant cannot demur to a dec- laration even where it appears on its face that the lunitation prescribed by the statute has expired, because the plaintiff would thus be deprived of the opportunity of repljdng and pleading any matter which would prevent the bar from attaching. The defend- ant must plead the statute if he wishes to avail himself of it. Guntonv. Hughes, 181 111. 132. The demurrer to the first four counts was therefore improperly sustained. . . . Reversed and remanded. ^ 1 See Ames, Cases on Pleading, ed. of 1905, pp. 128-132; Pomeroy, Code Remedies, 4th ed., p. 818. — Ed. 180 PLEADING CHAMBERS v. LATHROP. Supreme Court of Iowa. 1841. [Reported Morris, 102.] By the Court, Mason, Chief Justice.^ The declaravion in this case consisted of two counts, to which there was a general ilemurrer. Tliis being overruled, judgment was rendered for the plaintiff, for seventy-five dollars, and costs, without the interven- tion of a jury. It is assigned for error, in the first place, that the demurrer should have been sustained. If either count of the declaration was good, the demurrer was properly overruled. Although neither of the counts seem drawn up with much professional accuracy, and al- though the first is doubtless defective, the second appears sufficient in substance to sustain the judgment already rendered. . . . The judgment below will therefore he affirmed.- GHIRADELLI v. GREEXE, County Judge of Alameda County. Supreme Court of California. 1880. [Reported 56 California, G29.] Sharpstein, J.' An action was originally brought in a Justice's Court by A. C. Dietz, plaintiff, against Chiradclli, and others, defendants, to recover rent alleged to be due ujx)n a lease in writing. ' The statement of facts and a part of the opinion are omitted. — Ed. ' See Ames, Cases on Pleading, ed. of 1905, 23; 1 Chitty, Pleading, 16th Am. ed., •696; 6 Encyc. of PI. & Pr. 301. The same result has been reached where a single demurrer ha.s been iiiter- IK)sed to .several pleas. Stacy v. Baker, 1 Scam. (111.), 417; Farmers and .Merehants' Ins. Co. v. Menz, 63 111. 116 (set-t)fT); Webb v. Huwles.s, 1") Itid. 242; Cregory v. Gregory, S9 Ind. 345 (.sct-olT); Hudson i'. Inhabitants of Wiaslow, 35 X. J. L. 4.37; Mercein i;. Smith, 2 Hill (X. V.), 210 (set-ofT). A demurrer to the declaration and the several counts therein contained is treated as a demurrer to each count and will be sustained as to any defective counts and ovcrruUtl as to counts which arc not defective. May v. Western Union Tel. Co.. 112 Ma-ss. 90. In Home jurisdictions the denuirrer to ^^eve^al counts or i)lea,s is taken dis- tributively, and is sustained as to the bad, and overruled us to the good, rountM or plea.H. (Jearhart v. (Jhn.stead, 7 Dana (Ky.), 441; Tittle r. Hornier, 53 MisM. 587. See South Eastern Ry.C'o.i^. lUiilway Conunissioners, (i C^. H. D- .'.hC. Im). \ ii.irt of the opinion is omitted. — Ed. HUDSON, AC, V. SCOTTISH UNION & NATIONAL INS. CO. 181 Judgment was rendered against them, and they appealed to the Superior Court, which afl&rmed the judgment of the Justice's Court. The proceedings of the Superior Court have been brought before us upon a writ of review, sued out by the defendants. The defendants demurred to the complaint in the Justice's Court, on the ground that a copy of it had not been served upon them with the summons. Their counsel insists that this consti- tuted a ground of demurrer, because the Court could not acquire jurisdiction of the defendants without the service of a copy of com- plaint, with the summons. But the omission would not appear upon the face of the complaint, which was filed before the service or even issuance of the summons, and therefore the objection could not be taken by demurrer. Code Civ. Proc. § 423. The demurrer on that ground was properly overruled, and the answer of the defendants to the complaint was a voluntary appearance by them, which was equivalent to personal service of the summons and copy of the complaint upon them. Code Civ. Proc. § 416; id. § 1014. . . . Affirmed. Morrison, C. J., Ross, J., McKinstry, J., and Myrick, J., concurred. HUDSON, &c., V. SCOTTISH UNION & NATIONAL INSURANCE CO. Court of Appeals of Kentucky. 1901. [Reported 110 Kentucky, 722.] GuFFY, J} The plaintiffs instituted this action against the defendant in the Boyle Circuit Court, seeking to recover judgment against it for the sum of $1500. The claim is based upon a policy of insurance issued by the defendant to the appellant, Hudson, msuring him for the term of six months against loss or damage by fire of one lot of hemp, which was destroyed by fire, and was of the value of $10,000. A considerable portion of the stipulations con- tained in the policy are set out in the petition, showing the under- taking upon the part of defendant, and from which averment it appears that plaintiffs were entitled to a judgment for the SI 500, there being other insurance upon the property. It is further alleged in the petition as follows: " Said contract is filed herewith as part hereof, and made a part hereof as fully as if copied herein." 1 A part of the opinion is omitted. — Ed. Ib2 PLE.VDIXG The defendant demurred to so much of the petition as claimed a right to recover more than S1250, for the reason that said petition and exhibit do not state facts sufficient to constitute or support a cause of action for more than S1250. The coiu-t sustained the demurrer, and plaint ills failing to plead further, a judgment was rendered in their favor for the $1250, and the petition dismissed in so far as it sought to recover more than said sum, and from that judgment this appeal is prosecuted. It is insisted for appellants that the demurrer ought to have been overruled, for the reason that, so far as the petition contained allegations as to the liability of defendant, it was sufficient; in other words, it is insisted that the petition showed a right to recover as much as SloOO. The real question involved upon the demurrer is whether the entire policy sued on, together with all its stipula- tions and conditions, must be considered as part and parcel of the petition for the purpose of demurrer. It will be seen that as part of the jxjlicy there is a stipulation providing that in no event shall defendant be liable for more than three-fourths of the value of the projierty when destroyed, and, when there is other insurance, that its lialjility shall be regulated and controlletl in that proportion. It is the further contention of appellants that imder section 120 of the Civil Code of Practice they were required to file the policy because their cause of action was based thereon, but the filing thereof did not cause every stipulation of the policy to become part and parcel of the petition for the i)urpose of sustaining a demurrer thereto, and therefore the demurrer ought to have been overruled. And it is further contended that, if the three-fourths clause was available ius a defen.se, it could only be made so by answer. It is the contention of appellee that the entire policy constitutes part and jjarccl of the petition, and must all be considered on demurrer. Appellee cites Haney i'. Temi)est, ;i Mete. 97, and Wile v. Sweeney, 2 Duv. 102. Appellants cite Collins v. Blacki)urn, 11 B. Mon. 252, Hill V. Barrett, Id. 83, Yewell r. Bradshaw, 2 Duv. 575, together with KOino (lecisious of other courts of last resort. It will bo seen that the jjlaintilTs, by a spcscilic stali'ini'ut, made the policy in question part of the petition to the same extent as if it had been copie;{ ind. Kl'J. iM-orn these authorities, our c(niclusion is, that it was suflieiently shown in the indictment in this ca.se, that the licjuor, charged to have been unlawfully .sold by the .'ippelLarit , \\;is intoxicating. ' Tin- r)piiiic>ti (jf tlu! court ils to other iilloKcd errors is omitted. — Ed. CLOUGH V. GOGGINS 185 We hold, therefore, that the court below committed no error in overruling appellant's motion to quash the indictment. . . . We find no error in the record. The judgment of the court below is aflirmed, at appellant's costs.^ CLOUGH V. GOGGINS. Supreme Court of Iow^a. 1875. [Reported 40 Iowa, 325.] Action upon two promissory notes made by defendant, Oct. 1, 1871, and payable to plaintiff. A demurrer to the petition, on the ground that it shows the notes were executed on Sunday, was overruled. Defendant refusing to farther plead, a judgment was rendered against him, from which he appeals. Beck, J. I. Contracts made in this State upon Sunday are void, and a promissory note made upon that day will not support an action. Pike v. King, 16 Iowa, 50; Sayre v. Wheeler, 31 Iowa, 112. II. Courts will judicially take notice of the coincidence of days of the week with days of the month, as what days fall upon Sunday. 1 Greenleaf's Ev., § 5; 1 PhiUips' Ev. (Cowen & Hill's, and Ed- wards' notes), p. 625. III. Matters of which judicial notice is taken need not be stated in a pleading. Code, § 2722. This is a common law rule. 1 Chit, on Pleading, p. 245. The court mil take judicial notice that the day upon which the notes in suit were executed, October 1, 1871, was Sunday. In order to bring that fact to the consideration of the court, it was not necessary it should be alleged in any pleading subsequent to the petition, for the petition, interpreted by the judicial knowledge of the court, disclosed the fact. The petition then, as it contained matter which defeated plaintiff's claim, was rightly assailed b}- the demurrer, which should have been sustained. The judgment of the District Court must, therefore, be Reversed.^ ^ See Thayer, Preliminary Treatise on Evidence, Chap. VII; 4 Wigmore, Evidence, sees. 2565-2582. In most of the cases cited the question arose on the evidence and not on the pleadings. — Ed. ^ The court may take judicial notice that an allegation of fact in the plead- ings is untrue. Southern Ilailway Co. v. Covenia, 100 Ga. 46, 29 S. E. 219. — Ed. 186 PLEADING HANCOCK NATIONAL BANK v. ELLIS. Supreme Judicial Court of Massachusetts. 1896. (Reported 166 Massachusetts, 414.] Allen, J.' This case comes up on demurrer to the plaintiff's declaration. It is averred, in substance, that under the statute of Kansas, as interpreteil by the tlecisions of the Supreme Court of that State, the lial)ility of the defendant as a stockholder is a con- tractual liability, and arises upon the contract of subscription to the capital stock made by the defendant in becominjj; a stockholder, and that in subscribing to said stock and i)ecoming a stockholder he thereby guaranteed payment to the creditors of an amount equal to the par value of the stock held and owned l)y him, which should be payable to the judgment creditors of said corporation who first pursued their remedy under the statute; and that an action to enforce said lial)ility is transitory, and may be brought in any court of general jurisdiction in the State where personal ser- vice can be made upon the stockholder. The liability of the stockholders must be determined according to the law of Kansas. New Haven Horse Nail Co. v. Linden Spring Co., 142 Mass. 349, 353. Halsey v. McLean, 12 Allen, 438, 441. Flash v. Conn., 109 U. S. 371. We now have a case where the declaration, as we interpret it, sets forth that according to the law of Kansas the defendant is liable to a judgment creditor of the corporation as upon a contract, which is suable anywhere. The facts alleged in this respect are dilTerent from those in any case heretofore presented to this court (see Bank of North America v. Rindge, 154 Mass. 203), and the alleged liability of stockholders is of a different character from that which exists in this Common- wealth. We are, however, to adopt the construction \\ hicli is given in Kansius to the liability and undertaking of stockholders in Kansas corporations, and to give f(jrce and elTect to the same as there established. Accordingly, jurisdiction exists here to enforce the liability like other debts, if the law of Kansas is accurately stated in the declaraticjiL On tht^ demurrer we can only look at the averments of the declaration. We cannot take judici.al notice of the statut(« of Kansjus, or of their inter|)retation by the courts of that State. At. this stage, we simply look at the ca,se lus the plain- tiff presents it. • Tho Htateniirit of fjict.s is omit led. — Kd. HAITON V. JEFFREYS 187' The fact that the corporation is in the hands of receivers is immaterial, because, under the averments of the declaration, the liability of the defendant is directly to creditors, and the receivers could not enforce it. Barre National Bank v. Hingham Manuf. Co., 127 Mass. 563, 567. Cook, Stock & Stockholders, § 218, and cases there cited. The averments are sufficient to set forth that the defendant is such a stockholder as by the law of Kansas would be liable to the plaintiff. Judgment reversed. Demurrer overruled.^ HAITON and Others, Assignees, v. JEFFREYS. King's Bench. 1715. [Reported 10 Modern Reports, 280.] The Court was moved for leave to plead a plea, and demur to the declaration, at the same time, upon the 4 Anne, c. 16, § 1, the words of which are, " That it shall be lawful for any defendant, or tenant in any action or suit, or for any plaintiff in replevin, in any court of record, with the leave of the same court, to plead as many several matters thereto, as he shall think necessary for his defence: provided nevertheless, that if any such matter shall, upon a demurrer joined, be judged insufficient, costs, &c." The Court. The words of the act of parliament are, " that it shall be lawful to plead as many several matters, &c." Now a demurrer is so far from being a pWa, that it is an excuse for not pleading. Here j'ou plead, and at the same time pray that you may not plead. The word " matter " imports a possibility that the other party may demur to it: but there can be no demurrer upon a demurrer. This was never attempted before.'^ » Miller v. Aldrich, 202 Mass. 109, 88 N. E. 441; Sultan of Turkey v. Tiryakian, 162 N. Y. App. Div. 613, 147 N. Y. Supp. 978, accord. As to how far the federal courts will take judicial notice of the law of the several states, see Hanley v. Donoghue, 116 U. S. 1, 29 L. ed. 535, 6 S. Ct. 242. — Ed. 2 See 6 Encyc. of PL and Pr. 382. In some jurisdictions the rule has been changed by statute. Common Law Procedure Act, 1852, sec. 80; Hobson v. Satterlee, 163 Mass. 402, 40 N. E. 189. A party may of course demur to one or more separate causes of action or defenses and answer as to the residue. — Ed. 188 PLEADING THE AUBURN AND OWASCO CANAL CO. v. LEITCH. Supreme Court of New York. 1847. [Reported 4 Denio, 65.] Demurrer to a replication. The declaration was in assumpsit for the recovery of certain instalments clue upon shares of the capital stock of the plaintiff's corporation, subscribed for by the defendant. Pleas, 1. Xon-assumpsit. 2. Xul tiel corporatioti. Replication to the second plea, setting out the act incorporating the plaintiff, together with certain acts amending and continuing that act. The defendant demurred to the replication, and the plaintiff joined in demurrer. By the Court, Bronson, C. J.' The defendant insists that the declaration is bad on general demurrer. [The chief justice then examined the pleadings, and came to the conclusion that the declaration was substantially defective; and then proceeded as follows:] But it is said, that Jis the defendant pleaded non assumpsit as well as nul tiel corporation, he cannot upon this demurrer go back, and attack the declaration; and several cases have been cited to sustain that position. But it will l>e found on examination that the point has never been directly and necessarily adjudged. . . . It is quite clear that the defendant cannot both plead and demur to the same count. And it is equally clear, that at the common law, he could not have two pleas to the same count. Indeed the two things, though stated in different words, are only parts of one common law rule; to wit, that the defendant cannot make two answers to the same pleading. The statute of l ami 5 Anne, c. 16, was made to remedy this inconvenience; and it allowed the defend- ant, with the leave of the court, to plead as many several matters as he should think necessary for his defence. With us, leave of the court is no longer necessary. 2 R. S. 352, § 0. The statute does not say th;it the defendant may l)()th plead and demur; and con- sequently he cannot mak(! tw(j such answers. But he may plead two or more pleas; some of which may tt^rminate in issues of fact, to be tried by a jury; while others may result in i.ssues of law, to be detennincd by the court. And whenever we come to a denmrrer, whether it be to tlu^ ph^a, replication, n-jctiiider, or still further onward, the rule is to giv(r judgment against llie party who com- mitted th' arbitration or arbitrations, reference or references to arbitration, deed or deeds of submission, agreement or agreements, contract or contracts to refer to the arbitration or award of the saitl arbitrators, whereby they, the said arbitrators, were hinderetl and Trust Co. V. St. James A. M. E. Church, 85 N. J. L. 272, 88 Atl. 1075. But see Kearney County Bank v. Zimmerman, 5 Neb. (Unof.), 556. In Cummins v. Gray, 4 Stew. & P. (.\la.), 397, a demurrer to a dofertive declaration \va.s overruled and the defendant pleaded over. The plaint itT de- murred to the plea. The court held that the demurrer reached back to tlie declaration, which wjus held to be Ivid in substance, and judgment was ^'ven for the defendant. The Supreme Court afTirnied the judgment saying: " Many defects in a declaration jnay be cured, by pleading to the merits, cither before or after a demurrer. So far as this effect has been produce Mass. 1, 3, the court SJiid " Although on drmurrer (he court will look for the first fault, if it be matter of substance; yet it is aisn (lefcrts of form and defects of 8ul>Mtui)CC, mMr Could, I'leudinn, 2d eD. BURNET V. BISCO 205 writing with the plaintiff, whereby she agreed to give the plaintiff the refusal of the farm on which she lived, with the south half of the house, for the terra of two years, from the 1st of April, 1808, together with the stock, &c., at the following rate, viz., for the first year, 600 dollars, 140 of which to be paid in November, 160 dollars in December, and the remainder on the 1st May following. For the second year, 900 dollars was to be paid at the like periods, the stock to be appraised by certain persons, on the 1st April, 1808, and again at the end of the two years, and the same amount of stock to be returned, and good security given for the performance of the contract; the farm to be left in as good repair at the end of the two years, as at the commencement, &c., &c., reserving to the de- fendant land sufficient for her son to keep three horses, and for him to improve in his own person, and for pasturing a cow. The plaintiff averred, that on the 1st April, 1808, he performed the agreement, as far as his part was to be performed, and was then at the place ready to have the stock appraised, &c., and also tendered good security for the performance on his part, &c., yet the defend- ant not regarding, &c., assigning breaches of the whole agreement on the part of the defendant. To this declaration the defendant demurred specially, and assigned the following causes: 1. Because the plaintiff, though he states that the defendant did not give the plaintiff the refusal of the farm, &c., does not state that the defendant disposed of the farm to any other person, or that she retained it herself. 2. That the declaration does not state where the farm was situated, nor its value, nor the number of acres, nor the quantity of land to be reserved for the defendant's son, nor how much was requisite for the defendant's son; so that by reason of this uncer- tainty there was no rule bj'- which to measure the damages. 3. The declaration does not state who were to be the appraisers. 4. The plaintiff does not state what kind of security he offered, nor whether it was written or parol. To this demurrer there was a joinder, and the same was sub- mitted to the court ^vithout argument. Per Curiam. A defect in substance in this declaration is, that there is no consideration stated. The defendant agreed to give the refusal of the farm to the plaintiff; but he did not agree to take it, and there was no promise on his part as a consideration for the promise of the defendant, nor any money paid or other valuable consideration given. The agreement was a mere nudum pactum. 206 PLEADING A consideration is as necessary to an agreement reduced to WTiting, as if it remained in parol. (1 8auud. 211, note 2.) There must be judgment for the defendant.' New York Code of Civil Procedure. Sec. 488. The defendant may demur to the complaint, where one or more of the follo\\'ing objections thereto appear upon the face thereof. 1. That the court has not jurisdiction of the person of the defentlant. 2. That the court has not jurisdiction of the subject of the action. 3. That the plaintiif has not legal capacity to sue. 4. That there is another action pending between the same parties, for the same cause. 5. That there is a misjoinder of parties plaintiff. (). That there is a defect of parties, plaintiff or defendant. 7. That causes of action have been improperly united. 8. That the complaint does not state facts sufficient to consti- tute a cause of action. Sec. 490. The demurrer must distinctly specify the objections to the complaint; otherwise it may be disregarded. An objection, taken under subdivision first, second, fourth, or eighth of section four hundred and eighty-eight of this act, may be stated in the language of the subdivision; an objection, taken under either of the other subdivisions, must i)oint out specifically the particular defect relied upon. ' In .Milroy v. Hensley, 2 Bibl) (Ky.), 20, the court siiid: " Tho rule in (his resport .seorn.s to he, th:it on iv spooial (h-iniirror the party ran take no advan- tage of any other defect of form than what ho hath (expressed in hi.s demurrer, but that he may of matters of substance, whether particularly alleped or not." In State v. Covenhovcn, 1 Halst. (N. J.), ."ilM), p. 401, the court said: " .'\nf)ther observation may here be made, in answer to what wjis dropped by one of cr)un.sel, on the arp;ument. It was said tliat on a special demurrer, no objection can be taken to what is not particularly specified in the demurrer, anl!it(>s to formal dcfcfts, is correct, and warrantx'd by the statute, luit defe< shall be deemed insufficient for any defert which could heretof«»re only Ix; objected t-o by special demurrer." There has been similar legislation in most of the states in (his country. — Ed. NEW YORK CODE OF CIVIL PROCEDURE 207 Sec. 492. The defendant may demur to the whole complaint, or to one or more separate causes of action, stated therein. In the latter case, he may answer the causes of action not demurred to. Sec. 493. The defendant may also demur to the reply, or to a separate traverse to, or avoidance of, a defence or counterclaim, contained in the reply, on the ground that it is insufficient in law, upon the face thereof. Sec. 494. The plaintiff may demur to a counterclaim or to a defence consisting of new matter, contained in the answer, on the ground that it is insufficient in law, upon the face thereof. Sec. 498. Where any of the matters enumerated in section four hundred and eighty-eight of this a('t as grounds of demurrer, do not appear on the face of the complaint, the objection may be taken by answer. Sec. 499. If such an objection is not taken, either by demurrer or answer, the defendant is deemed to have waived it; except the objection to the jurisdiction of the court, or the objection that the complaint does not state facts sufficient to constitute a cause of action. Sec. 537. If a demurrer, answer, or reply is frivolous, the party prejudiced thereby, upon a previous notice to the adverse party, of not less than five days, may apply to the court or to a judge of the court for judgment thereupon, and judgment may be given accordingly. If the application is denied, an appeal cannot be taken from the determination, and the denial of the application does not prejudice any of the subsequent proceedings of either party. Costs, as upon a motion, may be awarded upon an applica- tion pursuant to this section. Sec. 538. A sham answer or a sham defence may be stricken out by the court, upon motion, and upon such terms as the court deems just. Sec. 545. Irrelevant, redundant, or scandalous matter, con- tained in a pleading, may ])e stricken out, upon the motion of a person aggrieved thereb}'. . . . Sec. 546. Where one or more denials or allegations contained in a pleading, are so indefinite or uncertain that the precise mean- ing or application thereof is not apparent, the court may require the pleading to be made definite and certain, by amendment. Sec. 547. If either party is entitled to judgment upon the plead- ings, the court may upon motion at any time after issue joined give judgment accordingly. 208 PLEADING Rules of the Supreme Court, 1883, Order XXV. 1. Xo domvirrer shall be allowed. 2. Any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the judge who tries the cause at or after the trial, provided that by consent of the parties, or by order of the court or a judge on the application of either party, the same may be set down for hearing and disposed of at any time before the trial. 3. If, in the opinion of the court or a judge, the decision of such point of law substantially disposes of the whole action, or of any dis- tinct cause of action, ground of defence, set-off, counterclaim, or reply therein, the court or judge may thereupon dismiss the action or make such other order therein as may be just. 4. The court or a judge may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being showTi by the pleadings to be frivolous or vexatious, the court or a judge may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just. SMITH el al. v. SUMMERFIELD et al. Supreme Court of North Carolina. 1891. [Reported 108 North Carolina, 284.] Shepherd, J.' . . . The third and fourth grounds of demurrer are untenable. A demurrer does not lie except in the cases specif- ically mentioned in section 239 of The Code. Dunn v. Barnes. 73 N. C, 273. Redundancy and impertinence in |)l('ading must be objected to by way of motion Ix'forc answer or demurrer (Best v. Clyde, SO N. C, 4), and the same is true ;us to argumentativeness, " indefiniteness or uncertainty, iniless the uncertainty l)e such as to state no cause of action." I'doiic ( "ode PI., 54, 140.^ . . . ' Only a part of the opinion of the court i.s Riven. — Ed. » See I'nion Hunk v. Bell, 14 Oh. St. 2(K). I'ndor the cfxleH dupUcity is not a ground of demurnr or motion to strike out. The remedy is I)}- motion to ronipel tlic party to .srp.-irate liiH causes of aetion or defenw;. Hcnirt s.aid : " A complaint to be overt liri>\'. II liv :i demurrer or objection to evidence, must be wholly in- FORMS 209 [Farm of Notice of Motion that Complaint be made Definite and Certain.] Supreme Court of the State of New York, County of New York. A. B., Plaintiff, 1 against \ Notice of Motion C. D., Defendant. J Sir: Please take notice, that on the complaint herein, the under- signed will move this court at a Special Term, Part I, thereof, to be held in the County Court House in New York County on , 19 , at 10:30 o'clock in the forenoon of said day, or as soon there- after as counsel may be heard, for an order 1. Directing that the complaint be made definite and certain by amendment so as to {Here state in what respects the complaint should be amended) ; and 2. Granting to the defendant such other and further relief as may be just. Dated, , 19 Yours, &c., X. Y., Attorney for Defendant. (Address) To V. W., Esq., Attorney for Plaintiff. [Form of Order.] At a Special Term, Part I thereof, of the Su- preme Court of the State of New York, held in the courtroom thereof in the County Court House, New York County, on the day of , 19 Present: Hon. E. C. C, Justice. A. B., Plaintiff, ] against C. D., Defendant. I sufficient. If in any portion of it, or to any extent, it presents facts sufficient to constitute a cause of action, or if a good cause of action can be gathered from it, it will stand, however inartificially these facts may be presented, or however defective, imcertain or redundant may be the mode of their state- ment. Contrary to the common law rule, every reasonable intendment and presumption is to be made in favor of the pleading, and it will not be set aside on demurrer unless it be so fatally defective, that, taking all the facts to be admitted, the court can say they furnish no cause of action whatever.'' — Ed. 210 PLEADING On reading and filing the notice of motion herein, dated , 19 , and the complaint herein, verified , 19 , and after hearing X. Y., Esq., counsel for the defendant, in support of the motion, and V. W., Esq., counsel for the plaintiff, in opposition thereto, it is, on motion of X. Y., attorney for the defendant. Ordered that the said motion be and the same hereby is granted, with ten dollars costs to the defendant, and the plaintiff is hereby directed to serve, ^^^thin twenty days after the service upon his attorneys of a copy of this order with notice of entry, an amended complaint which shall {Here state in ivhat respects the complaint should be amended). Enter: E. C. C. J. S. C. LEE V. MINNEAPOLIS & ST. LOUIS RAILWAY COMPANY. Supreme Court of Minnesota. 1885. [Reported 34 Minnesota, 225.) Mitchell, J. This appeal is from an order denying a motion to make the complaint more definite and certain. The action was for damages caused b}' the allegetl negligence of defendant in leaving exposed and unguarded in its yard at Albert Lea a receptacle for boiling water, into which, on the 21tli day of November, 1883, the plaintiff fell, while he " wa.s lawfully upon said premises l)y the in- vitation of the defendant, having been invited there by said defend- ant to obtain ernploynicnt." This the defendant asked to have made more definite and certain by stating how said invitation was extended to the plaintiff, and the name and occupation of the per- son or agent representing the defendant who extended it. In an affidavit jjresented by the defendant it was stat(>d, as a reason for making the motion, that for the past two years there had been employed in an^, as plaintiiT. The petition states two causes of action — false imprisonment and slander — and alleges that I Only that part of the opinion of the court which relates to the third ground of demurrer is here given. — Ed. ^ See Ames, Cases on Pleading, ed. of 1905, p. 135; 15 Encyc. of PI. and Pr. 762. In some states the codes allow misjoinder of defendants as a ground of demurrer. But even in some of those states the parties properly joined can- not object to the misjoinder. Gardner v. Samuels, 116 Cal. 84, 47 Pac. 935; Pomeroy, Code Remedies, 4th ed., p. 275. Compare the English rule, Rules of the Supreme Court, 18S3, Order XVI, rules 11-13, svpra, p. 166; and the New Jersey rule, New Jersey Practice Act (1912), sec. 9, supra, p. 170. At common law in actions ex contractu any or all of the defendants may on a general demurrer take advantage of a misjoinder of defendants apparent in 218 PLEADING both arose out of the same transaction. Harris demurred to this petition, on the ground " that it appears on the face of the petition, that several causes of action are improperly joined." The district court overruled the demurrer, and this ruling is assigned as error. The petition shows that the two causes of action are foundeil upon the following facts. Harris met Avery in the city of Fort Scott, and in the presence of several other persons called Aver>' a thief; said he luul a stolen horse; took the horse from Aver>', and kept the horse four or five days ; arrested Avery and confined him in the county jail with felons four or five days. We think these facts as detailed in the petition constitute only one transaction, [Brewer v. Temple, 15 Howard Pr. R., 286]; and whether they constitute more than one cause of action, under our coile practice, may be questional)le. Under the authority we have referred to they would not. But as we have not been asked to decide the latter question, we will pass it over and treat the case as though the facts stated constitute two causes of action. Section 89 of the code [Comp. Laws, 138], provides " that the plaintiff may unite several causes of action in the same petition, whether they be such as have heretofore been denominated legal or equitable, or both, when they are included in either one of the follo^^^ng clas.ses: First, the same transaction or transactions con- nected with the same su])ject of action." This differs in many respects from the common law rule. At common law " where the same fonn of action may be adopted for several distinct injuries, the plaintiff may, in general, proceinl for :ill in one action, though the several rights effected were derived fn.ni different titles," [1 Thitty's PI., 201; Tidd's Pr., 11], and dif- ferent forms of action may be united " where the same plea may be pleade\; Dicey, rurticH, TKHi. As to uctions ex dclirto, H«H' 1 ("hitty, IMcudinK, Itith Am. cd., * 97; Diocy, Parties, 50S. — Ed. HARRIS V. AVERY 219 prosecution; second, an action of slander for the words spoken, and third, an action of trover for the conversion of the horse. These may all be united in an action on the case [1 Chitty's PI., 133, 134, 146; 1 Tidd's Pr., 5]; trover being a species of case. Avery might, also, at common law, unite with these causes of action as many other causes of action as he might have, for mali- cious prosecution, slander, trover, criminal conversation, nuisance, and other causes of action which may be sued in an action on the case, and although they each may have arisen out of a different transaction, and at a different time, and in a different place. But if Harris arrested Avery without any process — which was the fact in this case — and in an entirely irregular manner, then the two causes of action for false imprisorunent and slander could not at common law be united, as the first would have to be sued in an action of trespass and the second in an action on the case, and it would make no difference whether they both arose out of the same transaction or not. Our code has abolished all the common law forms of action, and has established a system for the joinder of actions, — more philo- sophical, and complete within itself. It follows the rules of equity more closely than it does those of the common law, one object seeming to be to avoid the multiplicity of suits, and to settle in one action, as equity did, as far as practicable, the whole subject mat- ter of a controversy. Hence the common law on this question is no criterion. It is probably true that the two causes of action for false imprisonment and slander cannot, under our code, be united, unless both arise out of the same transaction, one being an injur>" to the person and the other being an injury to the character; but we do not know of any reason why they should not be united when both do arise out of the same transaction. It is claimed by counsel for plaintiff in error that the earlier reports of the New York code are against this view of the case. He refers to 8 Howard's Pr. R., 59, 73; 9 Howard's Pr. R., 113; 1 Duer, 629. We think it questionable whether these cases sustain the counsel's views; but if they do, the later decisions under the same code are squarely against him. See Brewer v. Temple, 15 Howard's Pr. R., 286; Robinson v. FUnt, 16 Howard's Pr. R., 240. In the latter case the court, as we think, expresses the true rule. They say " that the plaintiff may unite, first, as many legal causes of action as he pleases arising out of the same transaction; second, as many equitable causes of action as he pleases arising out of the same transaction; third, as many legal and equitable causes of 220 PLEADING action as he pleases arisinp; out of the same transaction; fourth, as many causes of action as he pleases arising out of tlilYerent trans- actions connected with the subject of the action." The order of the district court overruling the demurrer to the petition is affirmed. All the justices concurring.^ Geneil\l Statutes of Ivansas, 1909. Sec. 5681. The plaintiff may unite several causes of action in the same petition, whether they be such as have been heretofore denominated legal or equitable, or both. But the causes of action so united must affect all the parties to the action, except in actions to enforce mortgages or other liens.^ The New Jersey Practice Act (1912). Sec. 17. The court may, under such conditions as it may fix, require any or all motions preliminary to trial to be heard and determined by Supreme Court Commissioners designated by the the Court, and may fix their fees which shall be costs in the cause. Section II. Pleas or Answers. New York Code of Civil Procedure. Sec. 500. The answer of the defendant must contain: 1. A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or inf(jrmation thereof sufficient to form a belief. 2. A statement of any new matter constituting a tlefense or counterclaim, in ordinary and concise language without repetition. > But Hor Df Wolfe V. .Xhraliain, 1.')! N. Y. 1S6, 45 N. E. 4r)5. — Ed. ' In Knuliiiid l)y the Ilulcsof tlic Supreme Court, 1H83, Order XVIII, rule 1, it JHiirovidedthjit ".Sui)je(:t to till! following Kulf.s of lliis Order, the |)liiiiit iff may unite in flie wiiiie action .s<'veral causes of action; hut if it a|)pcar to the Court or tt Judj^e that any such cau.ses of action caiuiot he conveiiiently tried or dis- ]x>Hfil of toKether, the Court or Jud^e may order separate trials of any of such ciiuwH of action to he had, or may make such other onler as may lie necessjiry or cx|)cdierii fnr t)i<" H<[);irate diaposal thereof." — Eu. coles v. soulsby 221 Massachusetts Revised Laws, Chapter 173. ' Sec. 24. The answer shall deny in clear and precise terms every substantive fact which is intended to be denied in each count of the declaration separately, or it shall declare the defendant's ignorance of the fact, so that he can neither admit nor deny but leaves the plaintiff to prove the same. Sec. 27. An answer shall state clearly and precisely each sub- stantive fact which is intended to be relied upon in, avoidance of the action, and if it sets up the statute of limitations, the statute of frauds or any other legal bar, the defendant shall have the benefit of such defence although the answer does not deny the facts set forth in the declaration. COLES V. SOULSBY. Supreme Court of California. 1862. [Reported 21 California, 47.] Field, C. J., delivered the opinion of the Court — Cope, J., and Norton, J., concurring. This is an action to recover of the defendant the sum of $7890, being the amount of certain proceeds received by him from an interest in a quartz vein belonging to the plaintiff. The interest constituted the separate property of the plaintiff, who is a married woman, and the proceeds were received by the defendant previous to her marriage. The complaint is special and verified, and it is admitted that on the trial the plaintiff proved her case as it is there stated. The answer, with the exception of an averment as to an offset of three hundred dollars, amounts only to a denial of the allegations of the complaint. The defense upon which the defendant relied on the trial was an accord and satisfaction. . . . [The plaintiff objected to the evidence of accord and satisfaction introduced by the defendant. His objection was overruled, and a verdict and judgment passed for the defendant. The plaintiff appeals.] ^ In our practice, a denial, whether general or special, only puts in issue the allegations of the complaint. The difference between a general and special denial in this respect is only in the extent to ' The statement of the facts by the court is abridged and parts of the opinion are omitted. — Ed. 222 PLE.\DING which the allegations are traversed. New matter must be specially pleaded; and whatever admits that a cause of action, as stated in the complaint, once existed, but at the same time avoids it — that is, shows that it has ceased to exist — is new matter. It is that matter which the defendant must affirmatively establish. Such are release, and accord and satisfaction. Defenses of this char- acter must be distinctly set up in the answer, or evidence to estab- lish them will be inadmissible. This view disposes of the appeal and necessitates a reversal of the judgment. . . . Judgment reversed and cause remanded} MARSHALL-WELLS HARDWARE COMPANY v. E.MDE. Supreme Court of Minnesota. 1913. [Reported 121 Minnesota, 524.1 Action in the district court for Swift county to recover $1498 for certain goods, wares and merchandise. The answer was a general denial. The case was tried before Qvale, J., who directed a verdict in favor of plaintiff for the amount demanded. From an order denying defendant's motion for a new trial, he appealed. Affirmed. Per Curiam. This is an action to recover the purchase price for goods sold and delivered to the Farmers' Lumber & Supply Com- pany, a (•oi)artnership composed of the defendant and one Small. After the delivery of the goods, the (•()j:)artiu'rship was dissolved 1)V mutual agreement, and the dcfciulant took over the business of the firm, and, as a part of the transaction, assumed and agreed to pay the lialdlities of the lirm, including the claim in suit. These facts were not controverted on the trial. The defendant himself testified that he executed the written agreement whereby he assume' matter aliunde, which, although admitting such facts, would tenel to avoid their legal effect and operation. Finley V. Quirk, 9 IMinn. 179 (194); Brown i\ Eaton, 21 :\Iinn. 409; Lautenschlager v. Hunter, 22 Minn. 267; Bliss, Code PI. §352. The cases holtling that where a plaintiff alleges generally his own- ership of property, \\nthout setting out the source of his title, the defendant may give evidence of any facts tending to disprove such owiiership, so far from being in conflict with this rule, are in exact accord uith it. . . . Order affirmed} MARTIN V. SOUTHERN RY. Supreme Court of South Carolina. 1897. [Reported 51 South Carolina, 150.] This is an action for personal injury alleged to have been caused by the defendant's negligence. The answer denied all the allegations of the complaint except the corporate existence of the defendant. The jury rendered a verdict in favor of the plaintiff for $266. The defendant appealed upon exceptions.^ Gary, J. . . . The fourth exception is as follows: 4. "Excepts because the presiding Judge erred, as a matter of law, in charging the jury as follows: ' Contributory negligence, which you have heard the lawyers discuss here, is a matter that must be set up in the answer to be proved upon the defense, and it cannot be proved under a general denial. An affirmative matter of defense must be pleaded, else the proof will not bo allowed to be introduced; or if it docs come into the case, it will not be considered a matter of defense under tiic i^lcadings. Therefore, Mr. Foreman, the matter of contributory negligence is not pleaded here at all '; whercfis it is > Rayraond v. Phipps, 215 Mass. 559, 102 N. E. 905, accord. TiiK Statute ok Kuauus. The statute of frauds is generally held to be an affirmative defen.se. Citty i'. .Manufaeturinn Co., 9:} Tenn. 270, 21 S. W. 121. If it affirmatively api)ears on the face of the eornijlaint that the eontract is unenfonu-ahle herau.se n(jt comijlyinn with the rcTnent of costs in this court and the court })elow. Present — Iiigraham, P. J., McLaughlin, Laughlin, Dowling and Hotchkiss, JJ. Judgment reversed, with costs, and demurrer sustained, with costs, with leave to defendant to amend on payment of costs.' KELLER /'. JOHNSON and Another. SuPiiKMK CoiKT ov Indiana. 1S.'>8. (Reported 11 Indiana, WM .] Davihon, .). Tlif appcllfcs, who wciT the plaint ilTs, brought this action against Keller upon four several promissory notes, each for the payment of 180 dollars. The notes bear date .\pril 21, ' Siw Ilcc', the plaintiffs objected to the admission of any evidence of paj'ment under this answer; but the judge overruled the objec- tion.' . . . Endicott, J. The defence of payment is positively averred in the answer. After a general denial, " the defendants aver, that if the plaintiffs shall prove the making of the note tleclared on, or any of the items in the plaintiffs' bill of particulars, the same have been fully paid." The case is clearly to be distinguished from Caverly V. McOwen, 123 Mass. 574, and the other cases citetl by the plaintiffs. . . . Exceptions overruled.^ ' Only the opinion of the court on this ()l)j('(tion is Riven. — Ed. ' Hypothetical ph'iis were open to lOncyc. of I 'I. and I'r. 'JCt'.t. — Eu. JUDAH V. TRUSTEES OF VINCENNES UNIVERSITY 229 FORTESCUE v. HOLT. King's Bench. 1672. [Reported 1 Ventris, 213.] ^ A Scire facias was brought upon a Judgment of 1000 I. as Ad- ministrator of J. S. The Defendant pleaded, That before the Administration com- mitted to the Plaintiff, viz., such a Day, etc.. Administration was granted to J. N., who is still alive at D. and demandeth Judgment of the Writ. The Plaintiff replies, J. N. died, etc., and de hoc ponit se super Pa- triam. And to what the Defendant demurs; For that he ought to have traversed absque hoc, that he was alive: for though the Matter contradicts, yet an apt Issue is not formed without an Affirmative and a Negative; and so said the Court. ^ . . . JUDAH V. THE TRUSTEES OF VINCENNES UNIVERSITY. Supreme Court of Indiana. 1864. [Reported 23 Indiana, 272.] Frazer, J. . . . The action was to recover the value of certain state bonds of the University, amounting to .S25,000, which it was alleged the appellant had in his hands as its agent and attorney, and which, on demand, he refused to deliver, but had sold and converted to his own use. The defendant below answered, among other things, that the University was indebted to him for pro- fessional services as attorney in a suit against the state, by which the bonds were obtained, under a special contract, evidenced on the part of the University by a resolution of its board of trustees, made and entered on its records Februar^^ 8, 1853, to the effect that for such services he be allowed one-fourth of the net proceeds of the suit, to be paid to him proportionally out of such proceeds, as the same should be paid into the treasury of the board; that of ' A part of the case is omitted. — Ed. * But see Tomlin v. Burlace, 1 Wils. 6, s.c. 2 Str. 1177. See Stephen, PleadinR, WiU. ed., * 422. The defect of argumentativeness is not open to a general demurrer. Sheri- dan V. Sheridan, 58 Vt. 504, 5 Atl. 494; Walker v. Wooster's Admr., 61 Vt. 403, 17 Atl. 492. — Ed. 230 PLEADING Siiid bonils he retained S1G,G25, being one-fourth, as specified in the foregoing resolution. To this part of the answer tlie University, by the second paragraph of their reply, say that, at the date of the resolution, Judah was secretary of the board of trustees, and falselj' entered the resolution on the records of the board of trustees; that the resolution which was actually adopted provided, that for all his legal services and outlays (there were numerous other suits con- ducted by Judah as attorney for the University, and services and expenditures as agent) he should be allowed one-fourth, etc. But that Judah fraudulently, and AAnthout the knowledge or assent of the board, entered the resolution in form as stated in the answer. Now, this reply is simply a denial of so much of the answer as alleges the adoption of the resolution, or, in other words, the making of the contract l)y the trustees. It is argumentative to be sure, and it needlessly explains how a resolution never made by the trustees comes to be found on their records. This is surplusage. But neither argumentativeness nor surplusage justifies a demurrer under our system of pleading. There was therefore no error in overruling the appellant's demurrer to the second paragraph of the reply. ^ . . . BACH, CORY, AND COMPANY, Limited v. MONTANA LUMBER AND PRODUCE COMPANY et al. Supreme Court of Montana. 1895. [Reported 15 Monlaria, 345.) De Witt, J. This is an appeal from a judgment rendered on the pleadings. The action was in replevin. Upon complaint and answer filed the plaintiff moved for judgment on the pleadings upon the following grounds: " I. That there is no denial in defendants' answer of the allega- tions in plaintiff's complaint that the defendants took and received the lumber in said complaint described. "2. That defendants' answer admits that the value of the lumber taken l)y defendants lus alleged in plaintiff's complaint wjus $(jlS, and plaintiff should have judgment for such amount \\ith legal interest thereon from the date of conversion. " Klheut n. W'kkd, " Atty. for Plaintiff." ' A p;irt of thr opinion is omitted. The juil>iiiu;iit wjus reversed on the ground of an erroncoua ruling tia to the right to open tind close ut the trial. — Eo. BACH, CORY & CO. V. MONTANA L. AND P. CO. 231 This motion was granted. It is true that there was no denial in the answer that defendants took and received the lumber which was the subject of the action. The denial of the defendants is, that they did not take and carry away the lumber, etc. The denial is in the conjunctive. A denial that defendants took and carried away the goods is not a denial that they took the goods, or a denial that they carried them away. Boone on Code Pleading, §61, and cases cited; Harris v. Shontz, 1 Mont. 212; Toombs v. Hornbuckle, 1 Mont. 286; Power v. Gum, 6 Mont. 5. But there is a denial in the answer of another material allegation of the complaint, which denial raises an issue. The complaint alleges that on a certain day the plaintiff was the owner and law- fully possessed of the lumber. " The right to the possession of personal property is essential in the plaintiff in an action for claim and delivery." Laubenheimer v. McDermott, 5 Mont. 517; see also Cobbey on Replevin, § 784. This essential allegation was made, as we have seen, in the com- plaint. This essential allegation of the complaint was denied in the answer in the following language: " The defendants deny that the plaintiff was, at the time mentioned, or at any other time, the owner or lawfully possessed of any lumber of the description given in the complaint, or of the value named therein, or of any other value, at the mill-yard of Coffey and Brennan, in the county and state aforesaid." Here the denial is in the disjunctive, which is proper. (See cases last cited.) It is denied that the plaintiff was the owner or lawfully possessed of the lumber. This denial raised the material issue as to plain- tiff's right of possession. There being an issue raised, judgment on the pleadings was error, and the same is therefore reversed. Reversed.^ Pemberton, C. J., and Hunt, J., concur. * Compare Coram v. Sweeting, 2 Saund. 205; Stephen, Pleading, Will, ed., * 278; Tildesley v. Harper, 7 Ch. Div. 403, 10 Ch. Div. 393 (allegation that defendant offered plaintiff a bribe of 500 I. ; denial that defendant offered plaintiff a bribe of 500 I.); Foldman v. Shea, 6 Ida. 717. Where the denial is in the conjunctive and puts the plaintiff to the proof of several matters, the denial is not too large if the several matters are all necessary elements in the plaintiff's case. South v. Jones, 1 Str. 245. — Ed. 232 PLEADING SPENCER /•. TURNEY & CO. Supreme Court of Oklahoma. 1897. [Reported 5 Oklahoma, 683.] BiERER, J. J. Turney & Co., brought this action in the court below to recover judgment for the principal and interest upon a note which they allege in their petition was made by defendant to plaintiffs at Fairfield, Iowa, on the 7th day of March, 1889, for the smn of SI, 303. 50, ANnth interest at the rate of 10 per cent per annum, said note being due six months after its date. The tlefendant filed a demurrer to the petition, which was over- ruled, and he then answered in three paragraphs, the first being that the note was barred by limitation and the second and third being as follows : " .s>co;u/; That said defendant did not execute and deliver at Fairfield, Iowa, to the plaintiffs, or either of them, the note on which action has been brought and which is s(>t uji and described in plaintiffs' petition. " Third: The defendant denies that he is indebted to jilaintiffs in any sum whatever." This answer was verified by the defendant. Plaintiffs moved for judgment on the pleadings, which was granted, and exceptions saved, and defendant contends that this action of the court was erroneous. It is claimed that the second paragraph of defendant's answer was sufficient to put in issue the execution of the note, and the cases (A Brenner r. Bigelow, 8 Kan., 491), and ]\Ioore v. Emmert, 21 Kan. 1, are cited as autiiority in support of this position. The cases referred to in no way support this claim. The answer is a negative pregnant, which, in effect, admitted tliat the note was executed lus alleged in the jx-tition, but denied its execution and delivery at Fairlield, Iowa. To deny tiiat the note was made at I'airfield, Iowa, inipli(»s that it was made at some other |ila('(\ All tliat this paragra|)h (»f the answer denied was the i)lace of the exiv cution of the note and as the place where tlie note was made is, in this ca-se, entirely imm.aterial, nothing that the phiintiff alleged was denied and the pleadinti tendered n(» issne. (Bliss on Code Plead- ing, §332.) In Tate r. Pe()|)le, |( "oi.], 10 I'a.-. 171, il was held: " .\ deni.'d in ;in answer that a jiHJ^iinent was assigned for a valuable consideration is a negative pregnant, which admits the a.M«ignment but tlenies the sufliciency of the consideration." MYN V. COLE 233 And in Edgerton v. Power, [Mont.], 45 Pac. 204, it was stated that: " An answer which denies that ' the amount of stock' sold by plaintiff to defendant was ever delivered is defective, because a negative pregnant." The third paragraph of the answer which denied that the de- fendant was indebted to the plaintiffs in any sum whatever, also presented no issue. Plaintiffs did not allege an indebtedness, which would have been a conclusion, but they did allege the exe- cution and delivery of a promissory note, which was an allegation of fact, and the defendant failed to deny this fact by attempting to deny a conclusion which plaintiffs had not alleged. No other question is presented by brief of counsel. The trial court ruled correctly in sustaining the motion for judgment on the pleadings, and the judgment is accordingly affirmed. All the justices concurring, Affirmed.^ MYN V. COLE. King's Bench. 1606. [Reported Croke, James, 87.] Trespass, for entering his house, and taking his goods. The defendant pleads, as to the goods, not guilty; as to the entry into the house, that the plaintiff's daughter licenced him, &c. and that he entered by that licence. The plaintiff saith, " quod non intravit per licentiam suam ": and issue was joined thereupon. The first issue was found for the defendant ; and the second issue for the plaintiff, that he did not enter by licence; and damages were assessed to eighty pounds. Whereupon it was moved in ar- rest of judgment, that he ought to have traversed the licence, and not the entry by the licence; for that is pregnant in itself, and an ill issue : and he ought to have traversed the entry by itself, or the licence by itself, and not both together. ^ If one party makes a qualified allegation, and the other interposes a denial of the allegation " in manner and form as alleged," the denial has been held to deny only the qualification. Rumbough v. Improvement Co., 106 N. C. 461, 11 S. E. 528; Storey v. Kerr, 2 Neb. (Unof.), 568, 89 N. W. 601. For the effect at common law of a denial 7nodo el forma, see Gould, Pleading, 2d ed., p. 316; Stephen, Pleading, Will, ed., *219. — Ed. 234 PLEADING Williams and Yelverton were of that opinion. Vide 10 Edw. 4. 14 Hen. 4, pi. 32. PoPHAM agreed that the issue was ill, if it had l)een at the com- mon law; but being tried, it is made good by the statute of 32 Hen. 8. c. 30, which aids mis-joining of issues; for an issue upon a negative pregnant is an issue: per quod adjournatur. ^ HARDEN r. ATCHISON AND NEBRASKA R. R. CO. Supreme Court of Nebraska. 1876. [Reported 4 Nebraska, 521.] Maxwell, J. The plaintiff filed his petition in the district court of Richardson county, alleging "that on the twenty-first day of July, 1873, a mare belonging; to plaintiff, was on the railroad track of the defendant, in Falls City precinct, Richardson county, when a certain train of cars belonging to the defendant, and managed and controlled by its agents and employes, was passing over the railroad track. That the said agents and employes of said rail- road, negligently, carelessly, and wantonly, ran its engine and train of cars upon, over and against said mare, l)reaking one of her legs and causing other injuries, to the damage of the plaintiff in the sum of $75.00," etc. It was also alleged in the petition, that the railroad was not fenced, and that it had been constructed more than six months, at the time the injury was committed. The defendant answered the petition of plaintiff as follows: " The defendant, answering the petition of said plaintiff, hereto- fore filed agairLst it in the above entitled cause, says and denies that it negligently, carelessly, and wantonly ran its engine or loco- motive and train of cars over or afi;ainst the said mare of the said plaintiff. Defendant denies that the notice recjuired by the statute, in such cases made and provided, was given it by said plaintiff, :us to entitle said plaint ilT t(j doul)le damages. Defendant denies that said mare was worth the sum of sev(>nty-five dollars. Defend.'iiit alleges that said mare of said plaintiff was injured in the manner alle^I;ed by said plaintiff's petition by and through the negligence and carelessness of the said plaintiff." On the trial of the cause, the court instructed the jinv as fol- lows: " This suit is brought by tlie plaintiff to reco\rr dania^^es of * AulM;ry v. JumoH, 1 Vent. 70; h.c. 1 ShI. Ill, - l\.il». li'JiJ, (irconl. — IOd. HARDEN V. ATCHISON AND NEBRASKA R. R. CO. 235 defendant, alleged to be sustained by plaintiff, by reason of the defendant negligently, carelessly, and wantonly, running its engine upon and so badly injuring his mare as to render it worthless. The defendant denies that its engine or locomotive and train of cars ran over or against the mare of the plaintiff. This denial, puts the plaintiff upon proof of his cause of action; has he proved the injury was done by the defendant, or any of its employes ? I must instruct you as a matter of law, that the plaintiff has failed to prove that the defendant committed the injury, and your verdict must be for the defendant." To this instruction the plaintiff excepted. The jury found a verdict for the defendant. The plaintiff filed a motion for a new trial, which was overruled, and judgment was rendered dismissing the case. The case is brought into this court by petition in error. Sec. 134, of the code of civil procedure, provides, that " every material allegation of the petition, not controverted by the an- swer, and every material allegation of new matter in the answer, not controverted by the reply, shall for the purposes of the action be taken as true." Without considering the admissions contained in the answer, is there any denial therein, that the injury complained of was com- mitted by the defendant ? We think not. It is denied that the " defendant negligently, carelessly, and wantonly ran its engine, or locomotive and train of cars over, or against the said mare of the said plaintiff," but this is a mere denial of negligence on the part of the defendant, and not a denial that the defendant occasioned the injury complained of. "A defendant must answer the charges directly, without evasion, and not by way of negative pregnant." 1 Vansantvoords, Eq., 204. Moaks Van Sant, PI., 814. Baker v. Bailey, 16 Barb., 56. Fish v. Redington, 31 Cal., 194. Robins V. Lincoln, 12 Wis., 8. A denial must be direct and unambiguous, and must answer the substance of each direct charge; and such facts as are not denied by the answer for the purposes of the action, are to be taken as true. This requirement of the statute is not designed to prevent the defendant from denying such facts in the petition, as he believes to be untrue, but to prevent the introduction of fictitious issues; and while denials must be positive and direct, the verification need only be, that the defendant believes the facts stated in the answer to be true. There being no denial in the answer that the defendant commit- ted the injuries complained of, no proof of those facts was required. 236 PLEADING The court therefore erred in instruct inp; the jury to find for the defendant. The judgment of the district court is reversed, and the case remanded for further proceedings. Reversed and remanded.^ Lake, Ch. J., concurred. EDSON V. DILLAYE and Others. Supreme Court of New York. 1853. [Reported 8 Howard's Practice Reports, 273.] The complaint and answer were both verified in the usual form. A motion is made on the part of the plaintiff for an order to strike out all of the defendants' answer, except that part which admits the execution of the note, as false and frivolous, or for such other order as to the court shall seem meet, with costs. The other facts are sufficiently noticed in the opinion of the court. Welles, J. I am satisfied that the answer in this case, except- ing that part of it which admits the making of the note, is entirely frivolous. Section 152 of the Code provides that sham and irrele- vant answers and defences may be stricken out on motion. By section 247, if a demurrer, answer or reply be frivolous, the party prejudiced thereby may apply to a judge of the court, either in or out of court, for judgment thereon, and jutlgment may be given accordingly. Section 149 declares that the answer of the de- fenrlant must contain, 1st. A general or specific denial of each material allegation of the complaint controverted by the defend- ant, or of any knowledge or information thereof, sufficient to form a belief. 2d. A statement of any new matter constituting a defence or counter claim, in ordinary and concise language, without repetition. It is not pretended that the an.swer in this case falls under tlu> second Hul)-di vision. It c(!rtainly contains no new matter. It is contended that it does contain specific denials of material allega- tions of the complaint. They are, first, a denial of the allegation of non-payment of the note contained in the comi)laint ; second, a denial oi in(lel)te(lness by reason of iii;ikiiig (he note, or thai the ' Willi V. liiifT.'ilo \V:it(T Works Co., IS X. V. 119, ronlra. -Vn uiuiwor like thiit in tliL- jiriiicijiiil ciuw' i.s ii m-native pn^^n.uil :m(l open to a riujtion to make more (Iclinitt; iiiul rcrtain, l)ut tlic oitjcrtion i.s waived by failure; to nuikn Hiirli ;i motion. Scr Wiiil v. MiilT.'ilo W.-itcr Work.s Co., nH])ra. — i<:i>. SNOW V. CHATFIELD 237 note or any part of it is justly due or owing by the defendants to the plaintiff. Under these denials, no new matter would be admissible in evidence. The plaintiff would have nothing to prove upon the trial, except it might be a computation of the interest upon the note; for the making of the note is admitted by the answer. He would only have to open his case to the jury and demand their verdict; and there is nothing that the defendants could give in evidence under their answer. That they could not prove pay- ment, because they have not set it up in their answer; and so, of any other imaginable defence. Having admitted the making of the note, and not having set up any fact showing why they ought not to pay it, their liability to pay it is a legal conclusion, from which the defendants cannot escape, as they have not prepared the way by their answer, for giving any defence in evidence. The defendants' counsel have requested permission to amend. Amendments are usually allowed in order to promote the ends of justice. In the present case there is no affidavit showing that the defence was interposed in good faith; and the moving affidavits show a state of facts entirely inconsistent with any defence what- ever; and these affidavits are not met, or attempted to be met, with any denial or explanation. I do not understand the practice to be to allow of relieving a defendant from such a predicament, into which he has voluntarily brought himself. The motion is granted, with ten dollars costs, and judgment is ordered for the plaintiff for the amount of the note, to be assessed upon regular notice by the clerk of Monroe county, which county is designated in the complaint as the place of trial. ^ SNOW V. CHATFIELD. Supreme Judicial Court of Massachusetts. 1858. [Reported 11 Gray, 12.] Action of tort. The declaration alleged that the defendant " wrongfully, wilfully and without right " dug and excavated a sluice way and ditch along the line of a highway in West Stock- bridge, and near the plaintiff's dwelling-house, and thereby injured the house. The answer denied " each and every allegation con- tained in the plaintiff's declaration." ' See Columbia Nat. Bank v. Western Iron & Steel Co., 14 Wash. 162, 44 Pac. 145. — Ed. 238 PLEADING At the trial in the court of common pleas, the defendant offered to show that the sluice way and ditch were excavated with the consent and approbation of the surveyor of highways. Mellen, C. J. admitted the evidence for the purpose of rebuttino; any inference of the wilfulness of the act complained of; but refused to admit it for the purpose of establishing a legal justification, on the ground that no such defence was set up in the answer. The verdict was for the plaintiff, and the defendant alleged excep- tions. Dewey, J. The evidence olTered by the defendant was to prove a substantive fact intended to be relied on by the defendant in avoidance of the action, and should therefore, under the pro- visions of St. 1852, c. 312, § 18, have been set forth in precise terms in the answer. It is no excuse for not doing this that the declara- tion alleges that " the defendant wrongfully, wilfully and without right " dug and excavated a sluice way or ditch along the line of the highway and near the dwelling-house of the plaintiff, thereby injuring the plaintiff's dwelling-house. Such form of declaring does not require the plaintiff to prove as a part of his case in the first instance that the same was not done by a surveyor of high- ways, acting under the written approbation of the selectmen of the town. The proof of the acts set forth in the declaration, and the alleged injury to the plaintiff thereby, would require of the defend- ant to ju.stify, if he would maintain his defence. Such justification or substantive defence should be stated in his answer. He not having done so, but merely filed a general denial of " each and every allegation contained in the plaintiff's declaration," has no right upon the.se pleadings to justify his acts under any authority de- rived from a surveyor of highways. Exceptions overruled. TUV: ORIENT INSl'R.WCE COMPANY OF HART- VOliD, CONN. V. NORTH 1':RN PACIFIC RAILWAY COM PAW. Supreme Court of Montana. 1905. (Reported 31 Montana, 502.) ArrioN hy the Orient Insurance Company of Hartford, Con- necticut, against the Northern Pacific Railway ( oinpany, to recov(!r in.surancc paid to owners of wool stored in ;i warehouse; ignited by sparks from defendant's engines ami burned. .ludg- rnent for {)luintilT. Defendant ai)|)ealed. Allirmed. CANFIELD V. TOBIAS 239 Clayberg, C.^ Appeal by the Northern Pacific Railway Corn- pan}' from a judgment and order overruling its motion for a new trial.2 . . . Under the decisions of this court, contributory negligence on the part of plaintiff is a defense which, in order to be relied on, must be pleaded by defendant, in cases of this character. Ball v. Gus- senhoven, 29 Mont. 321, 74 Pac. 871; Cummings v. Helena & Livingston S. &. R. Co., 26 Mont. 434, 68 Pac. 852, and cases cited. The existence of contributory negligence need not be negatived in the complaint unless it appears from other allegations therein that the proximate cause of the injury was the act of the plaintiff. Upon the other allegations of this complaint, it is very apparent that the proximate cause of the injury in this case, for which suit was brought, was not the act of plaintiff, or of any of its predecessors or its assignees, but that of defendant. We find no allegations of such defense in the answer. True, the allegation is found in the complaint that the wool was destroyed by negligence of defendant, " and wholly by reason thereof, and ^^^thout any fault on the part of said firm of Hunter & Anderson, or of any member thereof, or plaintiff." This allegation was denied gen- erally in the answer. This is not sufficient to raise the issue of the contributory negligence of the plaintiff or its assignors. Plaintiff was not required, as above stated, to allege want of contributory negligence, and therefore its allegations above quoted are mere surplusage, and need not be proved. Defendant cannot be heard to assert that it is excused from pleading the defense of contributory negligence because of this allegation in the complaint. . . . Per Curiam. For the reasons stated in the foregoing opinion, the judgment and order are affirmed. CANFIELD et al. v. TOBIAS et ah Supreme Court of California. 1863. [Reported 21 California, 349.] Cope, J., delivered the opinion of the Court — Field, C. J., and Norton, J., concurring. This is an action to recover a balance alleged to be due on an account for goods, wares, and merchandise. The plaintiff obtained ^ A part of the opinion is omitted. — Ed. - The court withdrew from the jury the consideration of contributory negligence. — Ed. 240 PLEADING a judgment upon the pleadings, and the only question is as to the sufficiency of the answer. The answer admits that the indebtedness once existed, but avers that certain promissory notes, signed by the defendants and in- dorsed by a third person, were received by the plaintiffs in satisfac- tion of the del)t. It contains a copy of a receipt purporting to have been signed l)y the plaintiffs, acknowledging that the notes were received in full pa>"ment of the amount due, and avers that the notes themselves have been paid. For the purposes of the case, the matters set forth in the answer are to be taken as true, and there is no doul)t that these matters, relieved of other considerations, constitute a defense to the action. It is claimed, however, that the answer fails to deny, or denies insufficiently, certain allegations of the complaint charging the defendants with fraud antl misrepre- sentation in procuring the assent of the plaintiffs to the arrange- ment referred to. The character of the arrangement is fully set forth in the complaint, and the allegations upon the subject were inserted by way of anticipation, and not as a part of the cause of action necessary to be stated in the first instance. They are not, therefore, such allegations as were required in the complaint, and treating the denials in the answer as insufficient to raise an issue upon them, the question occurs as to whether they are to be acted upon as admitted. The statute provides that ever>' material allegation in the complaint, not specifically controverted by the answer, shall be taken as true; and a material allegation is defined to be one which is e-ssential to the claim, and cannot be stricken from the pleading without leaving it insufficient. Prac. Act, sees. 65, 66. It would seem from this that an allegation which is not essential to the claim, and which, therefore, is an immaterial one, is not an allegation neces.sary to jjc controverted by the an- swer, in order to avoid the consequence attached to a failure in this respect as to a material allegation. The language used is equiva- lent to saying, that unless the allegation is essential to the suffi- ciency of th(! pleading this con.sequence is not In follow, for exj/remiio uniics e.st exclusio alterius is the rule in such cases. The only allegations essential to a complaint are those recjuired in stating the cause of action, and allegations inserted for the purpose of intercepting and cutting ofT a defense are superlluous and im- material. The matter allegecl may be material in the ca.se, but inun.aterial in th(! (complaint, and a plaint ilT cannot by pleading such matt M. A S. 439; Taylor- Stites Cla.s8 Co. v. Manufacturers' Bottle Co., 201 Mjus-s. 12;}, S7 N. E. 558; CrKlkini'. Bailey, 74 N. J. L. Goo, Go .\tl. 1032, L. K. .\. (.n. h.), 1134; 34 Cyc. G'JG. — Ed. WALKER V. CLEMENTS 249 WALKER V. CLEMENTS. Queen's Bench. 1850. [Reported 15 Queen's Bench, 1046.] Assumpsit. The declaration (which recited a writ issued 31st October, 1849) was for work and labour as an attorney, money paid, and on an account stated. Plea (dated 30th November, 1849), among others: That " plain- tiff, before and at the time of the commencement of this suit, was, and from thence hitherto hath been and still is, indebted " to defendant in &c. (on a promissory note and two bills of exchange, and for railway shares and certificates of ownership of shares in companies, scrip certificates, goods and chattels, sold transferred and delivered, money lent, money paid, money had and received, interest, and money due on divers accounts stated) : which sums exceeded &c. ; and defendant offered to set-off &c. (in the common form) . Replication (dated 8th December, 1849): That the said sup- posed debts and causes of set-off " did not, nor did any part thereof, arise or accrue at any time within six years next before the com- mencement of this suit or the pleading of the said plea." Verifica- tion. Special demurrer, assigning causes which, so far as regards the decision of the Court, will sufficiently appear from the argu- ment. Lord Campbell, C. J. I think the plea bad. The set-off is substituted for a cross action. When are we to suppose that cros^ action brought ? Clearly at the time of the commencement of the plaintiff's action, since a set-off not then existing carmot be insisted upon. Coleridge, J. I am of the same opinion. A set-off must be available as a cross action would be. Wightman and Erle Js. concurred. Judgment for defendant.^ 1 Compare Mass. R. L. Chap. 174, sec. 10. — Ed. 250 pleading New York Code of Civil Procedure. Sec. 501. The counterclaim, specified in the last section, must tend, in some way, to diminish or defeat the plaintiff's recovery, and must be one of the following causes of action against the plaintitT, or, in a proper case, against the person whom he repre- sents, and in favor of the defendant, or of one or more defendants, between whom and the plaintiff a separate judgment may be had in the action: 1. A cause of action, arising out of the contract or transaction, set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action. 2. In an action on contract, any other cause of action on con- tract, existing at the commencement of the action. Sec. 495. The plaintiff ma}' also demur to a counterclaim, upon which the defendant demands an affirmative judgment, where one or more of the following objections thereto, appear on the face of the counterclaim: 1. That the court has not jurisdiction of the subject thereof. 2. That the defendant has not legal capacity to recover upon the same. 3. That there is another action pending between the same parties, for the same cause. 4. That the counterclaim is not of the character specified in section five hundred and one of this act. 5. That the counterclaim does not state facts sufficient to con- stitute a cause of action. Sec. 503. When a counterclaim is established, which equals the plaintiff's demand, the judgment must ho in favor of the defendant. Where it is less than the plaintiff's denKuul, the plaintiff must have judgment for the residue only. Where it exceeds the plaintiff's See IlinKle v. Hirkncll, ;{2 Iiid. :W.); lyowi.svillc .^ Xa-slivillc i{. R. Co. v. Copius, 9.5 Ky. 4«i(), 2(» S. W. 17'.>. (-'oiiipiirc Denver, etc., K. \i. Co. v. Smock, 2:i Colo. -i'Ai, 4- mitte .Soe Woodwiird I'. Ware, :i7 Me. ^iiV^] Shaw v. Cock, 7.S N. Y. 194. But BOC Mel/itiKhliri i'. Wcwt Kiid St. Ky. Co., 1H(1 Miuw. ITK), 71 \. K. :U7. — Ed. * Only tht; opinion of the court ih here nivcn. — Ed. MORTON V. SHAW 267 he shall recover therein," etc. Judgment has been recovered, and the sureties set up, as their only defence, that they have been dis- charged from liability by an amendment of the declaration in the original action. The law applicable to their contention has been fully considered and settled in recent cases. Driscoll v. Holt, 170 Mass. 262. Doran v. Cohen, 147 Mass. 342. Townsend National Bank v. Jones, 151 Mass. 454. Norris v. Anderson, 181 Mass. 308. Diet- trich v. Wolffsohn, 136 Mass. 335. In the first of these cases the discussion is so full, and covers this case so clearly, that it seems superfluous to add anything. The statute is R. L. c. 173, § 121. As the amendments were allowed without notice to sureties, it is open to them to contest the effect of the amendments. But if their effect was merely to put in proper form the statement of the cause of action upon which the action was brought, they are bind- ing upon the sureties, even though they greatly change the form of statement of the claim, or greatly enlarge the amount claimed according to the language of the original declaration. In the present case the recovery was on the second amended count. That differs from the original declaration in two partic- ulars. The original states the claim as founded upon a written contract for the sale of goods. In the opinion (Morton v. Clark, 181 Mass. 134) the court said: " The plaintiff declared on the memorandum as a contract in writing, and not on an oral contract of which the writing is a memorandum. ... If the declaration had been upon an oral contract . . . and had treated the writing as a mere memorandum not intended as a formal contract, . . . different questions would have arisen which we need not now con- sider," etc. The amendment to the declaration corrected this error in the pleading. There was another error in the declaration which was entirely clerical. The contract was for the sale of four thousand sides of leather, and the declaration averred that the defendant delivered 28,538 sides of leather, and neglected and refused to deliver the remaining 11,462 sides of leather. The fact was that 11,462 sides had been delivered, and the defendants had neglected and refused to deliver the remaining 28,538 sides. This mistake of statement was corrected in the amended declaration. Such changes as these do not introduce a new cause of action. They merely put the pleadings in form properly to present to the court the original cause of action for which the action was brought. 268 PLEADING The substance of the decision in Prince v. Clark, 127 Mass. 599, is that the amendment changed the cause of action, so as to enable the plaintiff to recover for that which he did not intend to include when he brought his action, but introduced later, through the amendment, in order to relieve himself of the consequences of a mistake in another case, made after his writ was entered. Al- though the amendment was binding on the defendants in the action in which it was made, it ought not to have been allowed. This decision does not affect the law as stated in the other cases above cited. Judgment for the plaintiff .^ FREEMAN v. CREECH. Supreme Judicial Court of Massachusetts. 1873. [Reported 112 Massachusetts, 180.] Writ of entry to recover land in Boston. It appeared from an agreed statement of facts that both parties claimed title from one Wentworth; that one McNiel sued Went worth in an action of contract, and attached the land in question; that, after the attach- ment, Wentworth mortgaged the premises; that the mortgage title by assignment came to the demandant; that after the making of the mortgage McNiel filed an amended declaration containing additional counts; that it did not appear upon the record that the original and the amended declaration were for the same cause of action; that the case was heard before a referee upon the amended declaration; that afterwards McXiel obtained jtulgment ujion the referee's award; that execution issued and was levied upon the demanded premises; and that the tenant claimed title through this levy. It was admitted, " if legally provable by oral lestiniouy, tiuit neither of the claims set forth in the third and fourth counts of the amenflecl declaration w;us inclu(le', and this is cither principal, i. e., carrying with it manifest ground of suspicion, or to the favor. A challenge is princi])', or has been arbitrator, or is interested in the cause, or has an action depending with unv of the parties, or has taken moiuy for his verdict, or formerly been a juror in the same cau.se, or is master, ser\anl, counsellor, steuaid, or attorney to, or of the same society or corporation with, one of the parties; all these are ])rincipiil causes of challenge, which, if true, cannot be overruled, for jurors must \h' muni exceptionc inojons. A ch.allenge to the favor is grounded only on some pr()l)al)le cause of suspicion, as acquaintance, or the like, the validity of which is determined l)y triors; thes<', if the first, juror be chalhngeil, are two indilTerent f)ersoris named by theC^ourt; if they find one man indifferent h(> whall be Hworn, and he with the tvv(j triors shall try (he next, and GARDNER V. TURNER 273 when another is found indifferent and sworn, the two triors shall be superseded, and the two first sworn on the jury shall try the rest. Fourthly, Propter delictum; this species of challenge may take place when the juror is tainted by some crime or misdemeanor which affects his credit. GARDNER v. TURNER. Supreme Court of New York. 1812. [Reported 9 Johnson's Reports, 260.] A MOTION was made in behalf of the defendant, for judgment as in case of nonsuit, for not proceeding to trial in this cause, at the last circuit in Rensselaer county. It appeared that after the cause had been twice passed in the calendar of causes without being brought on, it was again called, and the jury were about to be impaneled, when the plaintiff's attorney presented a challenge to the array, which stated that the clerk of the county, his deputy or agent, instead of drawing out of the box containing the names of jurors, thirty-six names, drew out the number of seventy-two names, which he put in a list, and then selected and marked thirty-six of the jurors, so drawn, and directed the sheriff of the county to summon the thirty -six jurors, whose names were so marked and designated, for the circuit court and oyer and terminer, and the others for the court of common pleas, and the sheriff accordingly summoned the thirty-six jurors so designated, for the circuit. The attorney for the defendant stated to the judge, that the facts alleged in the challenge were untrue, and offered to take issue, if the judge thought the challenge ought to be received, or sufficient to prevent the trial of the cause. The judge refused to quash the venire, or pass the cause, on account of the challenge, and no issue in fact was taken thereon. The plaintiff's attorney then declined to bring on the cause. In support of the motion, the affidavits, also, of the clerk and his deputy were read, denying the facts stated in the challenge to the array made by the plaintiff's attorney. Per Curiam. The defendant moves for judgment as in case of a nonsuit for plaintiff's default, in not proceeding to trial at the last circuit court, in Rensselaer county, and he is entitled to the effect of his motion, if the plaintiff has been in default. The motion is 274 TRIAL resisted on the ground that, at the circuit, the plaintiff challenged the array, for a supposed misconduct in the clerk, in drawing out seventy-two names, and designating thirty-six of them to be sum- moned as jurors to that circuit. This challenge was overruled by the judge, but the plaintiff declined to proceed to trial. Either party has a right to challenge the array; and partiality, or some default in the sheriff or his under officer who arrayed the panel, are good causes of challenge. 2 Tidd, 779. If the facts alleged in the challenge are denied to be true, two triors are ap- pointed by the court, out of the panel, Co. Litt. 158, or, perhaps, any two individual persons named by the court. If the triors pro- nounce the causes of challenge unfounded, the trial proceeds. If the facts are admitted, but are deemed insufficient, the court ad- judges on them, and either quashes the array, or overrules the challenge. Since our statute authorizing the clerk to array the jury, a challenge Hes to it, for partiality, or default in the clerk, who, for many purposes, is substituted for the sheriff, in selecting and arraying the jury. The facts set forth in the challenge amounted, if true, to a default in the clerk, in forming the array, and the defendant ought to have joined issue on the challenge; and if the triors had found, that the jury was not thus arrayed, then the cause must have proceeded, or the plaintiff would have been in default. The challenge should not have been overruled, and as it is, the plaintiff is not chargeable with a default in not pro- ceeding to trial, for he had a right to the challenge, and, if well founded, it would be a sufficient cause for not going to trial. It is now admitted that the facts statetl in the challenge are un- founded; and could we believe that it was interposed merely to delay and interrupt the defendant, we ought, now, perhaps, to consider it as no excuse for not proceeding; this we are not au- thorized to do, but are bound to consider it interposed on informa- tion then received. Motion denied.^ ■ ' Sc(,' Vanaukcn v. Beemor, 1 South. (N. J.), 364; Moore v. Niivassii Guano Co., i:U)N'.C.22'), 41 S. K.2{y.i; Muu.sliowfr r. Patton, IOS.tk.A' H. (Pa.), 334, in wliicli it wuH held tliat the challcnKt' Khould l)c allowcii. Si-c al.-io Ncal r. JJclawarc, 103 11. S. 370, 20 L. (•<1. r,r»7. Se<; Commonwealth v. Wal.sli, 124 Miuss. 32; MatTctt v. Den, 1 Hal.sf. (N. J.), 228; IJIIman v. State, 124 Wis. 002, 103 N. W. 0, in wliidi the -liailengc was not allowwl. Sinion in omitted. — Eu. HUFNAGLE V. DELAWARE & HUDSON COMPANY 277 in said cause. To the overruling of which motion the defendant excepts. We have no doubt but that the cause of challenge was sufficient. Lord Coke's language, on the subject, is as follows: Affinity or alliance by marriage is a principal challenge, and equivalent to consanguinity, when it is between either of the parties, as if the plaintiff or defendant marry the daughter or cousin of the juror, or the juror marry the daughter or cousin of the plaintiff or defendant, and the same continues, or issue be had. Coke Litt. 157. The plaintiff contends that the juror, when questioned as to the cause of the challenge, should have been sworn. There is no doubt but that the plaintiff might have objected to the examination of the juror ■without oath; but the plaintiff, by permitting the ques- tions to be put to the juror, and answered by him, without requir- ing him to be sworn, waived the objection. The Circuit Court, instead of permitting the juror to be sworn on the jury, should have sustained the challenge. . . . Per Curia??!. — The judgment is reversed with costs. Cause remanded, &c.^ HUFNAGLE v. DELAWARE & HUDSON COMPANY. Supreme Court of Pennsylvania. 1910. [Reported 227 Pennsylvania, 476.] MoscHZiSKER, J.2 . . . In the calling of the jury counsel for the plaintiff challenged two of the panel for cause, alleging that they were employed by the defendant company. The court sustained the challenge stating: " Taking it as a fact that the only ground for challenge for cause is that these two jurors are simply em- ployees, one a miner and the other a division superintendent of some of the collieries of the defendant Company, the court is of opinion that the challenge should be sustained." While no Pennsylvania case •with facts precisely like the one under consideration has been called to our attention, yet the general principle is laid down in our cases that no person should be permitted to serve on a jury who stands in any relation to a party to the cause that would " carry with it prima facie e\adent marks of suspicion of favor," as where ' As to disqualification of jurors for relationship or affinity, see Hardy v. Sprowle, 32 Mc. 310; Bigelow v. Sprague, 140 Ma*:s. 42.5, 5 X. E. 144. — Ed. * The statement of facts and a part of the opinion are omitted. — Ed. 278 TRIAL a litigant is in a position where " he might exercise a control over the juror," such as the relation of master and servant: Pipher v. Lodge, 16 S. & R. 214; Harrisburg Bank v. Forster, 8 Watts, 304; Cummings i'. Gann, 52 Pa. 484. In the present case the trial judge applied the rule to the relation of employer and employee, and in this thert' was no error. . . . The assignments of vytot are all overruled, and the judgment is affirmed.' MURCHISOX NATIONAL BANK v. DUNN OIL MILLS COMPANY and BARNES. Supreme Court of North Carolina. 1909. [Reported 150 North Carolina, GS3.] Walker, J.- . . . The defendants, having exhausted their per- emptory challenges, objected to a juror, Samuel Bear, who ad- mitted that he is a stockholder in the plaintiff bank. The court, upon evidence, found that, notwithstanding the fact of his being a stockholder, he was " a fair and unbiased juror," and overruled the challenge. In this ruling, we think, there was error. It is very true, the cause of challenge is not one of tho.se .specified in the statute, but they are merely cumulative, and it was not the inten- tion of the Legislature to repeal the fundamental principle of the common law forbidding a person to sit in judgment when his own interests are involved. Whether there are any circumstances which will justify a departure from this elementary rule by reason of the necessity of the case, we need not coiLsider, as no such neces- sity arose in the trial of the present action. The only question presented is, was the juror competent to sit in the case ? He was a stockholder of the i)laintiff bank, and therefore had a direct pecuniary interest in the result of the trial. Tiiis cannot well bo questioned. He was therefore made a judge in his own cause without any sufficient reason in law to sustain (he ruling of the court. Whether he was actually biased or not is immaterial. Suppose a i)laintiff in a case is called as a juror. Could we hesitate to declare his incompetency ? The difference between such a case « Conip;irc f;(•<.^^^ill Hnilro.i.i .UKi H;irikiii>i <"(>. i. Tier. TJU In. 459, 52 S. E. OH), 4 Anri.Ciw. 'JOO; .Murphy c Sunt luTti l':u-. ( N)., .'{1 Ncv. IJO, 101 P:ic. 322, 21 Ann. T'lw. .')02; SiuiHoiivcr v. (;iciily<)n Dye Worku, 2S R. I. 53'.), OS All. 545. — Ki. * A part of the opinion Ih oinitti-ii. - lOu. MURCHISON NAT. BANK V. DUNN OIL MILLS CO. 279 and the one before us, where the juror is the holder of stock in the plaintiff bank, is one that relates, not to the fact, but to the degree of interest. . . . The principle as applicable to a stockholder is clearly and strongly stated in Page v. Railroad, 21 N. H. 438, as follows: " The juror, who owned stock in the Concord and Claremont road, was, therefore, by virtue of this contract, directly interested in the result of the cause, which he assisted to try. His interest was probably very trifling in amount, and may not have influenced his judgment at all on the question of damages. But the principle is extremely well settled that any, even the smallest, degree of interest in the question pending is a decisive objection to a juror." Citing Hes- keth V. Braddock, 3 Burrows, 1856; Hawkes v. Kennebeck, 7 Mass. 464; Wood v. Stoddard, 2 Johns. (N. Y.), 194. The authorities are quite uniform to the effect that a stockholder is not a competent juror if the corporation in which he is a stockholder is a party to the action. Railroad v. Howard, 20 Mich. 18; Fleeson v. Savage, 3 Nevada, 157; Silvis v. Ely, 3 Watts and Serg. (Pa.), 420; Essex v. McPherson, 64 111. 349; Railroad v. Hart, 60 Ga. 550. See, also, Zimmerman v. State, 115 Ind. 129; Railroad v. Barnes, 40 Mich. 383; Dimes v. Canal, 3 H. L. Cases, 759. It was held that, by the common law, a stockholder, on account of his interest in the cor- poration, could not be a competent witness for it. Porter v. Bank, 19 Vermont, 410; McAuley v. York Co., 6 Cal. 80. In Silvis v. Ely, supra, Rogers, J., said: " The first error (assigned) is in re- jecting a person because he was a stockholder and director in the Farmers Bank of Reading. Interest is a principal cause of chal- lenge, and for that reason the juror was incompetent in a cause in which the bank had an interest." In this case the defendants joined in the challenge, as they had the right to do, and the oil company can avail itself, on this appeal, of the error of the court in overruling the challenge. It has been compelled to try the case with a juror in the box to whom it had objected and who was in- competent to serve. The erroneous ruling of the judge as to the competency of the juror compels us to order a new trial in the appeal of the oil company. New Trial} ' As to the effect of relationship of a juror to a stockholder of a corporation which is a party to the action, see Stone v. Monticello Constr. Co., 135 Ky. 659, 117 S. W. 369, 40 L. R. A.(n. s.), 978, 21 Ann. Cas. 640. See further Moore v. Farmers' Mut. Ins. Assoc, 107 Ga. 199, 33 S. E. 70; Walter v. Louisville Ry. Co., 150 Ky. 652, 150 S. W. 824, 43 L. R. A. (n.s.), 126. — Ed. 280 TRIAL BLEVIXS. by his next friend /•. THE ERWIN COTTON MILLS. Supreme Court of North Carolina. 1909. [Reported I oO North Carolina, 493.] Action to recover damages for personal injury, caused by alleged negligence of defendant company, tried before Jones, J., and a jury, at October Term, 1908, of Durham. Plaintiff objected to a juror because he was an employee of defendant company; objection overruled; plaintiff excepted. The juror was then challenged peremptorily; the challenge was allowed.' . . . Hoke, J., after stating the case: We have carefully considered the exceptions noted in the record, and find no reversible error to plaintiff's prejudice. It is very generally hold that an employee is an incompetent juror for the trial of a cause involving the rights or interests of the employer, and the plaintiff's objection should have been sustained. Railroad v. Mitchell, G3 Ga. 173; Railroad V. Mask, 164 Miss. 738. But the juror was challenged peremp- torily, and it does not appear that the plaintiff's rights were in any way prejudiced by this ruling of the court. We have uni- formly held that this right of challenge is given to afford a party litigant fair opportunity to remove objectionable jurors, and was not intenth'd to <'nui)le them to .select a jury of his own choosing. In State v. Gooch, 94 N. C. 987, the doctrine is stated as follows: " The right to challenge jurors is not a right U) select such as the prisoner may desire, l)ut is only the right to take off objectionable jurors and to have a fair jury to decide the cause." . . . The judgment for defendant is therefore affirmed. No err or. ^ ' A [)!irt of the statement of facts and a |)art of tlie opinion are omitted. — Ed. » See Stoweil v. Standard Oil Co., l.i'J Mich. IS, lOJ N. W . 2J7; Burnett v. B. & M. R. R. Co., 16 Neb. 332, 20 N. W. 280. — Ed. DAVEY V. THE CITY OF JANESVILLE 281 DAVEY V. THE CITY OF JANESVILLE. Supreme Court of Wisconsin. 190L [Reported 111 Wisconsin, 628.] Bardeen, J.^ Several jurymen who were residents and taxpayers in the city of Janesville were asked whether the fact that they might be called ujjon to pay a part of any judgment recovered by plaintiff would influence their action in arriving at a verdict. They answered that it would not. Defendant's counsel argue that this kind of an examination might have a tendency to cause jurors to lean towards the plaintiff's side of the case, in order to prove that they were not affected by their slight financial interest in the result. At common law the authorities are uniform that taxpayers of a city, in an action against it, might be excluded from, the jury ex mero motu, or upon challenge for this cause, on the ground that they might be responsible for a ratable proportion of whatever verdict might be rendered against the city, and to that extent pecuniarily interested in the result of the suit. Thompson & M., Juries, § 179. This rule has been changed by statute in most states, probably on the ground that the interest is so inconsiderable as not to be likely to influence individual action. We see no reason why a plaintiff, who is the most likely to be affected by the interest of the juryman, may not make the inquiries mentioned, with a view of establishing a foundation for the exercise of the right of peremptory challenge, if for no other purpose. The fear that such examination would be likely to arouse a tendency to lean the other way is more imaginary than real. . . . By the Court. — The judgment is affirmed.* * The statement of facts and a part of the opinion are omitted. — Ed. * As to what questions are improper as tending to prejudice jurors, see Blair V. McCormack Constr. Co., 123 N. Y. App. Div. 30, 107 N. Y. Supp. 750, affirmed, 195 N. Y. 521, 88 N. E. 1115; Putnam v. Pacific Monthly Co. (Ore., 1913), 130 Pac. 986, 45 L. R. A. (n.s.), 338. See further Maize v. Sewell, 4 Blackf. (Ind.), 447; Thompson, Trials, 2d ed., sees. 102, 103. For the effect of a juror's residence in a city or town which is a party, see Hesketh v. Braddock, 3 Burr. 1847; Kentucky Wagon Mfg. Co. v. City of Louisville, 97 Ky. 548, 31 S. W. 130; Hildreth v. City of Troy, 101 X. Y. 234, 4 N. E. 5.59, .54 Am. Rep. 686; and cases and statutes cited in Thompson, Trials, 2d ed., sec. 63. Compare Boston v. Baldwin, 139 Mass. 315, 1 N. E. 417 (member of city council a juror in case to wiiich the city is a party). — Ed. 282 TRIAL EASTMAN V. COMMISSIONERS OF BURKE COUNTY. Supreme Court of North Carolina. 1896. [Reported 119 North Carolina, 505.] F.\ircloth, C. J.^ This is an action for possession of a part of the court-house square in Burke county. The phiintiflf made a motion to have the cause removed to another county, on the ground that the subject of the action is county property, and that every juror in the county was interested as a taxpayer. The same principle was considered in Johnson v. Rankin, 70 N. C. 550, and the motion was overruled. No judge or juror can serve in an action in which he is interested, but the interest of a man because of his residence in a county or town is too remote and indirect. Such a rule would disqualify every judge or justice of the peace to try an action in the county or town in which he resided. Affintied.^ SPEAR et al v. SPENCER. Supreme Court of Iow^\. 1848. [Reported 1 G. Greene, 534.] Kinney, J. This was an action of trespass, tried at the Septem- ber term of Jones County district court, 1847. It aj^pears from the bill of exceptions that upon the day preceding tiie trial, a criminal cause was tried, in which the plaiiililTs in error were convicted for an assault with intent to conunit a bodily injury. It also appears from the bill of exceptions that the action of tres- pa.ss was ba.sed upon the same facts, in\-ol\ing in the issue the same transa('tir)ns as those tried and determined in the criminal cause, upon which tlu* defendants had been found guilty. An objection was made to six of the jurors, by the defendants alleging their incompeten(y upon the ground that, they were jurors in the trial upon the indictment, and had expressed throu^!;h their verdict their oj)inion. These jurors were placed u])on their voir dire, and being informed that the cixil cause was in relation to the ' Thf Htiitemetit of f!i(;l.s iw ornittcMl. — Kd. » Coiiiljiirc WilHori v. Wapello Crxinty, 129 In. 77, 105 N. W. 'M\:\, Ann. Can. a-iS; Bin Simdy Ky. Co. v. lioyd County, 125 Ky. :M5, 101 S. W. 354; W-'-... .. DeWitt County, 1*.» T.-x Civ. App !.'>(», IC S. W. lOC.I. - Ku. SPEAR V. SPENCER 283 same facts as the one which they had tried, said that they had not formed or expressed any opinion. Whereupon the court annulled the objection to the jurors, and the cause was tried, and a verdict of guilty returned against the defendants. The action of the court in overruling this objection is assigned for error. The counsel for defendants in error insist that as the jurors brought themselves within the test, by stating under oath that they had not formed or expressed any opinion in the case, that they were competent jurors. This is a rule which has been universally adopted in our courts, the object of which is to satisfy the court that the jurors have neither formed nor expressed any opinion, and are, therefore, free from bias, feeling, or prejudice. While, there- fore, we would not innovate upon this well-established practice, still we cannot but conclude that in this case there was no necessity for the court's resorting to this test, as it must have been apparent that the jurors could not thus free their minds from those feelings of prejudice and disfavor, which the testimony, arguments, and verdict of an exciting criminal cause must have produced. If the six jurors were competent, then the entire panel that tried and convicted the same defendants in the criminal prosecu- tion was a competent panel in the civil action depending upon the same facts and proof; and as the jury in a criminal cause must be satisfied beyond a reasonable doubt of the guilt of the defendants, before they are authorized to return a verdict of " Guilty," and as in a civil cause the preponderance of testimony forms the basis of the verdict, it appears to us that a verdict against the defendants in a civil cause, depending upon the same facts as those upon which they had been convicted upon on indictment, would be inevitable, providing both are tried by the same jury. It should be a primary object with the court, in the administra- tion of justice, to preserve the purity of the jury box, and, if possi- ble, to prevent persons from sitting as jurors upon the rights and liberties of men, where prejudice, feeling, or preconceived opinions, are to influence a verdict, which ought always to be impartial and the legitimate result of law and evidence. While the competency of jurors is left to the discretion of the court, it ought always, in order to give the parties the benefit of an impartial trial, to prevent those men from becoming jurors, who, it appears, have formed an opinion, or whose minds are corrupted with improper prejudice and feeling, although they may say upon 284 TRL^L oath that they are free from these disabihties. Without this salu- tary check, the purity of jury trials cannot be preserved, nor the rights of parties proj)erly maintained. In the case before us, six of the jurors who had tried and con- victed the defendants upon an indictment involving the same questions and facts, were permitted to sit as jurors, and as we think it was impossible for them not to have formed an opinion upon the same matter involved in the issue at law (although they may innocently have thought differently), j^et we are fully satisfied that they were incompetent jurors, and that it should have been so ruled by the court. The judgment of the court below is reversed, and a venire de novo awarded.^ WILSON V. THE STATE. Court of Errors and Appeals of New Jersey. 1897. [Reported 60 New Jersey Law, 171.) David Wilson was convicted of murder in the first degree, in November, 189G, in the Morris county Oyer and Terminer and sentenced to be executed.- . . . \an Svckel, J. The grounds relied upon for the reversal of the judgment in this case are: First. The refusal of the trial court to sustain challenges to jurors. . . . The ciuestion in relation to the challenge of jurors is presented as follows: " Juror Peter Cook, challenged to the favor, having been duly sworn, testified as follows: " Direct examination by Mr. Quayle. " Q. Where do you live ? "J. Hu.ld'sLake. " (J. Have you formed any opinion in Ihis case ? 'M. I liavo. ' Compare People v. Mol, i:i7 .Mich. (i'JJ, 100 X. W. 913, CS L. R. A. 871, 4 Ann. Coh. IMK); Hunt v. City of (Joluinhiji, 122 Mo. App. 31, 97 S. W. 955. Ah to how fur ii kno\vl(; of the factH iifTi'ct.s the eonipeteticy of a juror, see State V. Ccirr, 111 la. 7()r., Ki N. W. 71S; liuriiiinton iV M. Hivrr U. H. Co. v. Bo«;be, 14 Neb. 43 L. R A. W)7. -Ki). ' .\ p.'irt of fh»' Htafeini-nt of factH atxl a i)art of the opinioii aiiaker, 54 Vt. 112. Aa to the necessity that an opinion be expre.s.seil or cleclared before it renders the juror disquaUfied on a challenge for principal cause, see Boardman v. Wood, 3 Vt. 570; Thompson & Merriam, Juries, sec. 200. As to inromiH'tcncy for bitus, .see Chicago & Alton R. R. Co. v. Adler, 56 111. 344; Commonwealth v. Kna[)p, 9 Pick. (Mass.), 49<); llicobald v. St. Louis Transit Co., 191 Mo. 395, iK) S. W. 314; (nie.sapeakc i\: Ohio Hy. Co. v. Smith, 103 \'a. 320, 49 S. K. 487. — lOu. ' The di.s.sent was not baaed on the (juestion of the competency of the juror. — Ed. SEARLE V. ROMAN CATHOLIC BISHOP OF SPRINGFIELD 287 SEARLE V. ROMAN CATHOLIC BISHOP OF SPRINGFIELD. Supreme Judicial Court of Massachusetts. 1909. [Reported 203 Massachxisetts, 493.] Knowlton, C. J.^ . . . Exception was taken by the defendant to the ruhng of the judge at the request of the plaintiff, that no person of the Roman CathoHc faith should sit as a juror in these cases. Under this ruling two jurors were excluded from the panel, one a resident of Northampton and the other a resident of South Hadley. The ruling was made on the ground that the defendant is the Roman Catholic Bishop of Springfield, a corporation sole under the St. 1898, c. 368, who holds the title to the real estate in trust for the Roman Catholic church, and that these excluded jurors have an interest in the suit analogous to that which taxpayers have in a suit against the city or town in which they reside. It is not con- tended and it could not successfully be contended that holding the same religious belief as one of the parties, or affiliation with him in the same church, would disqualify a person from sitting as a juror in his case. The application of such a doctrine would be unjust and impracticable. Commonwealth v. Buzzell, 16 Pick. 153. Purple V. Horton, 13 Wend. 1. Barton v. Erickson, 14 Neb. 164. Smith V. Sisters of Good Shepherd, 27 Ky. Law Rep. 1170. The real estate held by the defendant is in the town of East- hampton, and it was bought as a site for a church edifice. The excluded jurors were not taxpayers in that town, and it may be assumed that they were not members of the parish that was ex- pected to use the church. The ruling applied to all jurors of the Roman CathoHc faith, without reftrence to their residence, or to any close affiliation with the local church. Has every person of the Roman Catholic faith in the diocese of the bishop of Spring- field a pecuniary interest, of which the court can take notice, in every church owned by the defendant in every part of the diocese ? We are of opinion that he has not. It does not appear, and we have no reason to suppose, that every Roman Catholic living in a remote part of the diocese can be affected pecuniarily by a small loss or gain of the bishop as owner, in connection with the erection of a Roman Catholic church in Easthampton. Under the St. 1898, c. 368, the defendant's holding of property is " for the religious and charitable purposes of the Roman Catho- ' The statement of facts and a part of the opinion are omitted. — Ed. 288 TRIAL lie Church." In the R. L., c. 36, §§ 44-16, it is strongly implied that there is a ditTerence in the trusts, and in the beneficiaries, among churches in different places, and that the members of a par- ticular parish and those directly connected with the church therein have different pecuniary relations to the church there from those of the same faith who live in a different part of the same diocese. Upon the record before us this ruling of the judge appears to be wrong. See Burdine v. Grand Lodge of Alabama, 37 Ala. 478; Delaware Lodge v. Allmon, 1 Penn. (Del.), 160. The remaining question is whether the error was prejudicial to the legal rights of the defendant. The manner of impaneling jurors is prescribed by the R. L., c. 176, § 25. The names of those sum- moned as jurors are wTitten on ballots and placed in a box, and, after the ballots are shaken up, the clerk draws them one by one in succession until twelve are drawn. Apart from challenges, " the twelve men so drawn . . . shall be the jury to try the issue," etc. The order of the judge was a violation of the statutory pro- vision, and of the defendant's right to have the excluded men sit as jurors unless challenged by the plaintiff. The case was tried by other quahfied jurors, and it is argued that the defendant was not injured by the order. Under the R. L., c. 176, § 32, no irregularity in the drawing, summoning, re- turning or impaneling of jurors is sufficient to set asitle the verilict, unless the objecting party was injured thereby. In general it may be assumed that all duly qualified jurors, against whom there can- not be a successful challenge for cause, will consider and try a case properly. But a man may have affiliations and friendships, or prejudices and habits of thought which would be likely to leadjiim to look more favorably for the plaintiff, or less favorably for him, upon a case of a particular cla.NS, or upon one brought by a particu- lar person or a member of a particular class of persons, than would the average juror, even though his peculiarities are not sufficiently pronounced to disciuaiify him for service. It is in reference to these peculiarities that the j)arties are given a limited number of peremptory challenges. While they have no direct right of selec- tion, this right (jf perern{)tory challenge giv(>s to each i)arty a restrict*'"! opportunity for choice among ciualified i)ersoiLs.' Any- thing which renders this statutory right of ixTeniptory challenge materially less valuable is an injury to a party, within the meaning of the statute. WC do not intiniate that any juror wouhl con- ' In I'l. L., c. 17r», § '2'J, it is jirovidcd tli.iL " In n civil cusi- cich purty Hliall be entitled to twu uuch ciiulieiigcH." SEARLE V. ROMAN CATHOLIC BISHOP OF SPRINGFIELD 289 sciously allow feelings of friendship or prejudice, or unusual and peculiar habits of thought, to affect his conduct in the jury room; much less that a party has a right to have the benefit of the pecu- liar views or special feelings of a particular juror in the trial of his case. But the right of peremptory challenge in the impaneling of jurors cannot be disregarded as of no value to the parties. In the case at bar, a class of persons qualified as jurors, whom the plain- tiff thought in such relations of religious affiliation with the defend- ant that they would be Ukely to hear his defense in an attitude of special friendship, was withdrawn from the list of jurors. The order of the judge rejecting these men, at the request of the plain- tiff, gave him at the outset an adcUtional power of choice, and made his right of peremptory challenge relatively more valuable, while the defendant's similar right was made relatively less valua- ble. We are of opinion that this was an injury to the defendant which entitles him to a new trial. The number of persons sum- moned as jurors that belonged to this class does not appear. It only appears that the names of two of them happened to be draT\Ti from the box. Our decision seems to be in accordance ^ith the weight of au- thority, although some of the cases depend upon local statutes. Hildreth v. Troy, 101 N. Y. 234. Welch v. Tribune Pubhshing Co., 83 Mich. 661. Scranton v. Gore, 124 Penn. St. 595. Mon- tague V. Commonwealth, 10 Gratt. 767. Kunneen v. State, 96 Ga. 406. Bell v. State, 115 Ala. 25. Danzey v. State, 126 Ala. 15. We are aware that courts have often required pretty clear proof of injurj' before setting aside a verdict for a cause of this kind. West V. Forrest, 22 Mo. 344. Southern Pacific Co. v. Rauh, 49 Fed. Rep. 696. Pittsburg, Cincinnati, Chicago & St. Louis Rail- road V. Montgomery, 152 Ind. 1, 23. People v. Scarce}^, 121 Cal. 1. Tatum v. Young, 1 Porter (Ala.), 298. Abilene v. Hen- dricks, 36 Kans. 196, 200. It is also generally held that an appel- late court will not review an exercise of discretion, or a mere finding of fact of a trial judge, determining whether a person shall sit upon a jury. Commonwealth v. Hayden, 4 Gray, 18. Grace v. Demp- sey, 75 Wis. 313. People v. Searce\, 121 Cal. 1, 3. Common- wealth V. Moore, 143 Mass. 136, and cases cited. Whether an error of law like that in the present case, if it arose only in deter- mining the qualifications of a single juror, should be held so far to injure an objecting party as to require the verdict to be set aside. we do not find it necessarj'^ to determine ; but when, as in the pres- 290 TRIAL ent case, the ruling applies to a class of persons, we feel con- strained to say that there wa.s an injury of which the law should take notice. Exceptions suatained.^ Section III. Right to Open and Close. MERCER V. WHALL. Queen's Bench. 1845. [Reported 5 Queen's Bench Reports, 447.] Covenant against the defendant, an attorney, for dismissing from his service the plaintiff, an articled clerk. The defendant pleaded that the plaintiff had misconducted himself. The plain- tiff replied, de injuria. On the trial, before Lord Denman, C. J., a question arose as to the right to begin; and his Lordship ruled that the plaintiff had that right, since it lay on him to prove some damage. There was a verdict for the plaintiff, damages 300/. The defendant ol)tained a rule nisi for a new trial on the ground, inter alia, of an improper ruling on the right to begin.^ Denman, C. J. The natural course would seem to be that the plaintiff should bring his own cause of complaint before the Court and jury, in every case where he has anything to prove either as to the fact necessary for his obtaining a verdict, or as to the amount of damage to which he conceives the proof of such facts may entitle him. The law, however, has by some been supposed to differ from this course, and to require that the defendant, by admitting the cause of action stated on the record, and pleading only some affirmative fact which if proved will defeat the plaintiff's action, may entitle himself to open the proc<'('(nng at tlu; trial, anticipating the plain- tiff's statement of his injury, disparaging him and his ground of complaint, offering or not offering, at his own option, any proof of his defensive; aUegalion, and, if \w. offers that proof, adai)ling it, not to plaintiff's cjisc; as established, but to that which he chooses to represent that the plaintilT's case will be. « Sec Rwd V. Pcurock, 12.1 Mich. 244, S2 X. W. :>^, 40 L. R. A. 423; Ilil- drc-th V. City of Troy, 101 N. V. '1\V\, 4 X. K. r.m, r.4 Am. Ilcp. HSfi. — Kd. ' Tin- Htiit«-iiierit r)f fiirtH Ih ;il)riii(^<'(i !iii(:n und close in all cases. See Dorr v. Tremont Nat. lijink, 128 Mass. 349. — Ed. MURRAY V. NEW YORK LIFE INSURANCE COMPANY 295 PONTIFEX and Others v. JOLLY. Nisi Prius. 1839. [Reported 9 Carrington & Payne, 202.] Assumpsit on a bill of exchange, dated the 16th of February, 1839, drawn by James Jolly on the defendant for £25, payable three months after date, and by James Jolly indorsed to the plain- tiff. Pleas, 1st, a denial of the acceptance; 2nd, a denial of the indorsement; 3rd, paj'ment before the bringing of the action; 4th, that the bill was given as a security for the payment of a sum of 26L 5s. due from James Jolly to the plaintiffs, and that that sum had been paid to the plaintiffs before the bringing of the action. Replication, to the 3rd and 4th pleas, de injuria. R. V. Richards, for the defendant. — I will admit the acceptance and the indorsement, and open my case on the 3rd and 4th pleas. Kelly, for the plaintiffs. — The defendant admitting that the plaintiffs must have a verdict on the first two issues does not de- prive me of my right to begin. R. V. Richards. — I submit that this is like the case of an eject- ment by heir against devisee; where, if the defendant admits the heir's primd facie title, he is entitled to begin. Alderson, B. — I think ]\Ir. Richards now admitting the ac- ceptance and indorsement will not entitle him to begin. On this record the plaintiff is entitled to begin. Kelly, for the plaintiffs, opened his case. Verdict for the plaintiffs.^ MURRAY V. NEW YORK LIFE INSURANCE COMPANY. Court of Appeals of New York. 1881. [Reported 85 New York, 236.] Miller, J.^ The right of a party holding the affirmative upon an issue of fact upon trial to open and close the evidence, and upon the final submission of the case to the jury to reply in summing up ^ See Price v. Seaward, Car. & M. 23; Lake Ontario Nat. Bank r. Judson, 122 N. Y. 278, 25 N. E. 367. As to the effect of an amendment of the pleadings, see Gardner v. Meeker, 169 lU. 40, 48 N. E. 307. — Ed. * The statement of facts is omitted. — Ed. 296 TRIAL the case is too well settled to iulmit of any question. And when such right is denied by the judge upon the trial, such denial fur- nishes ground for exception, which is the subject of review upon appeal. Millerd v. Thorn, 56 N. Y. 402.^ The defendant in this case clearly held the affirmative of the issue upon trial, and the judge erred in refusing to allow the defendant to open and close the case in accordance with such right. The complaint was upon two policies of insurance, copies of which were attached, each of which contained a provision as follows, that: " If the person whose life is hereby insured shall . . . die in, or in consequence of a duel, or of the violation of the laws of any nation. State or province, . . . then, and in every such case, this policy shall be null and void." It alleged among other things that the death of the insured was not caused by the breaking of any of the conditions and agreements in either of the policies. This allegation was not re(iuired, and all that was essential to make out a cause of action was a statement of the contract, the death of the assured, and the failure to pay as provided. The insertion of an unnecessary allegation in the com- plaint, which the plaintiff was not required to aver or to prove in order to establish his case, could not and did not deprive the defend- ant of his right to the affirmative, if such rigiit actually existed. As the allegation referred to was not properly tluTc for the purpose of making out a good cause of action, the complaint must be re- garded as if it contained no such averment. The answer of the defendant denied this allegation of the complaint, admits the death, and sets up that the insured died in consequence of a violation by him of the laws of the State of New York, and in consequence of an unlawful a.ssault committed by him upon one Robert H. Ber- dell. It also admits that the defendant insured the life of Wisner Murray by two policies of insurance, copies of which were annexed to {\n'. complaint, and begs leave to refer to the origiiKUs thereof when they shall b(^ ])ro(lu<-('d. This allegation we think was not a ' I'or f;iiwHHho\vinn coiillictiiin opinions lus to wlictlicr flic ilcprix'atioii of tho riKlit 1*> bonin ^^ error, wh; 'riionip.son, 'IViiilH, 2(1 <•(!., sec. 22(5; liS Cyc. 1309. In I.!incuHt«• reviewed ordy hy a motion for a new trial in the trial court, anill of excep- tioriH or of a writ of error, hecause it doe.s not, alTeet tin- nurilH of the contro- verey. iJay v. WiHxlworth, l.'J How. .'{•).'}, ;{70." — I'a). MURRAY V. NEW YORK LIFE INSURANCE COMPANY 297 denial of the policies and did not require their proof. In fact it admitted their existence and validity, simply asking that the originals instead of copies be taken as the contract, which was all the plaintiff claimed. The only facts which were really to be tried were those averred in the affirmative defense set up that Wisner Murray died in con- sequence of a violation of the laws of the State. If the defendant introduced no such evidence by the answer which admitted the plaintiff's cause of action she was entitled to recover the amount of the policies. The defendant had alleged a breach, and unless it was proved no defense was made out, and the plaintiff was not called upon to disprove what had not been established l)y evidence. No pre- sumption could arise in favor of the defendant without proof that the assured died from a violation of law, and unless this was es- tablished the plaintiff would have been entitled to a judgment upon the pleadings. The rule is well established that in an action upon a policy of insurance when the answer admits the issuing of the policy and the allegations in the complaint, and alleges a breach of its conditions, the burden of proof is upon the defendant, and the plaintiff is entitled to recover unless the defendant satisfies the court or jury, by a preponderance of evidence, that the conditions had been broken. Jones v. Brooklyn Life Ins. Co., 61 N. Y. 79; Van Valkenburgh v. American Pop. Life Ins. Co., 70 id. 605; El- well V. Chamberlin, 31 id. 611. There is no ground for claiming that the answer did not admit all that was essential to entitle the plaintiff to a judgment, and there is no such denial of any material fact in the complaint as required any proof on the part of the plain- tiff to maintain the action. IMerely asking leave to refer to the original policies when produced related to the accuracy of the copies, was not a denial of their terms and conditions, and presented no issue for trial. The plaintiff, we think, would have been entitled to a judgment without their production, and upon the failure of the defendant to prove his affirmative defense that the deceased died in, or in consequence of a violation of law, and after the court had held that the plaintiff was entitled to the affirmative, such testimony could have no effect in determining the right of the defendant to the affirmation. As for the error stated the judgment must be reversed, and as a new trial may present a different state of facts, it is not necessary to consider the other questions raised upon the trial. 298 TRIAL The judgment should be reversed and now trial granted, with costs to abide the event. All concur. Judgment reversed.^ In Huntington v. Conkey, 33 Barb. (N. Y.), 218, p. 228, the court (E. D. Smith, J.) thus summarized the law on the right to begin: " 1st. The plaintiff in all cases where the damages are unliqui- dated, has the right to open the case to the jury and have the reply. " 2d. Whenever the plaintiff has anything to prove, on the question of damages, or otherwise, lie has the right to begin. " 3d. In other cases, where the damages are liquidated or depend upon mere calculation — as the casting of interest — the party holding the affirmative of the issue has the right to begin. " 4th. The affirmative of the issue, in such cases, means the affir- mative in substance, and not in form, and upon the whole record. " 5th. That the denial of the right to begin, to the party entitled to it and claiming it at the proper time, is error for which a new trial will be granted; unless the court can see, clearly, that no injury' or injustice resulted from the erroneous decision." Section IV. Demurrer to Evidence. MIDDLETON v. BAKER. Queen's Bench. IGOO. [Reported 2 Croke, Elizabeth, 7")2.] Ejectione Firmae. — It was held by all the Court upon evidence to a jury, that if tlu; plaintiff in an ejectione firmae, or other action, gives in cNiilence any matter in writing or record, or a sentence; in the si)iritaal court (as it was in this case), and the defendant (offers to deriiur thereupon, the ])laintiff ought to join in the demurrer, or waive llie evidence, Ix'cause the defendant shall not be compelled to i)ut a matter of difiicully to lay gents, and becau.se there caiiiiot be any \ariance of a inalt.er in writing: but if either party offers to (lemur upon any evidence given by > See Ilfilbronn t;. IIorzoR, lOfj N. Y. 98, .58 N. E. T.'iO. f>)nvfrwly, wlicn the; pl«'!i or iiiiHWcr i.s iifrmniitivc in form Imt tu'Kativo in BubHtiinc*', {he [)liiintifT hiiH the riKht to ojMjn und cIohc. Iluhm v. Dcif?, 1-1 Ind. 283, •2;i N. E. 141. — Eu. SKINNER MANUFACTURING COMPANY V. WRIGHT 299 witness, the other, unless he pleaseth, shall not be compelled to join; because the credit of the testimony is to be examined by a jury, and the evidence is certain, and may be enforced more or less, but both parties may agree to join in demurrer upon such evidence. And in the queen's case, the other party may not de- mur upon evidence shewn in writing or record for the queen, unless the queen's counsel will thereto assent; but the Court in such case shall charge the jury to find the matter special, as appears 34 Hen. 8. Dyer, 53. But this is by prerogative. SKINNER MANUFACTURING COMPANY v. WRIGHT. Supreme Court of Florida. 1906. [Reported 51 Florida, 324.] Shackleford, C. J. This is an action of ejectment instituted by the plaintiff in error as plaintiff against the defendant in error as defendant in the Circuit Court for Santa Rosa County to recover the possession of a certain parcel of land and for mesne profits. At the close of all the plaintiff's evidence the defendant filed what pur- ported to be a demurrer thereto, the plaintiff objected to joining therein but the court made an order requiring it to do so, which the plaintiff then did, and after argument by the respective counsel the court made an order sustaining the demurrer to the evidence and rendered a judgment in favor of the defendant. To this judg- ment the plaintiff took a writ of error returnable to the present term. Three errors are assigned, based respectively upon the order requiring the plaintiff to join in the demurrer to the evidence, the order sustaining the demurrer and the order overruling the plain- tiff's motion for a new trial. The demurrer in question was as follows : " The defendant demurs to the evidence in this case and for ground of demurrer says that it is insufficient to warrant the finding of a verdict or the rendition of a judgment in favor of the plaintiff." We are of the opinion that all the errors are well assigned. It is settled law in this court that the party demurring to the evidence must set forth on the record all of the evidence intended to be admitted thereby, and, if this is not done, the opposing party cannot be required to join therein, and, even if he should join therein voluntarily, the court can give no judgment upon the de- murrer, but must award a venire de novo. See Higgs v. Shehee, 4 300 TRIAL Fla. 3S2; Morris v. I^IcKiiinon, 12 Fla. 552; Hinote v. Simpson & Co., 17 Fla. 444; Hanover Fire Insurance Co. v. Lewis, 23 Fla. 193, 1 South. Rep. SG3; Duncan r. State, 29 Fla. 439, 10 South. Rep. 815; Wilkinson v. Pensacola & Atlantic R. R. Co., 35 Fla. 82, 17 South. Rep. 71; Fee v. Florida Sugar Manufacturing Company, 36 Fla. 012, 18 South. Rep. 853; Holland v. State, 39 Fla. 178, 22 South. Rep. 298; Ingram r. Jacksonville St. R. R. Co., 43 Fla. 324, 30 South. Rep. 800; Lowe v. State, 44 Fla. 449, 32 South. Rep. 956, S. C. 103 Amer. St. Rep. 449; Mugge v. Jackson, 50 Fla. 235, 39 South. Rep. 157; Atlantic Coast Line R. R. Co. v. Dexter, 50 Fla. 180, 39 South. Rep. 634. Also see Gould's Pleading (5th ed.) 446 et seq.; Gibson and Johnson v. Hunter, 2 H. Blackstone, 187, text 205 et seq., 6 Ency. of PI. & Pr. 446 et seq. None of the evidence in the instant case, which was partly docu- mentary and partly i)arol, was reduced to writing, ami no facts were athnitted or stated on the record by the demurrer. Further discussion is unnecessary. The judgment must be reversed, and it is so ordered, at the cost of the defendant in error.^ CocKRELL and Whitfield, JJ., concur. Taylor and Hocker, JJ., concur in the opinion. Paukhill, J., discjualified. > In the leading case of Gibson v. Hunter, 2 H. Bl. 187, Lord Chief Justice Eyre said : " All our books agree, that if a matter of rcconl, or uther matter in writing, be offered in evidence in maintenance of an issue joined between the parties, the adverse party may insist upon the jury being discharged from giving a ver- dict, by ilemurring to the evidence, and obHging tlie jiarty offering the evidence to join in demurrer. He cannot refuse to join in demurrer, he must join, or waive the evidence. Our books al.si; agree, that if i)arol evidence be offered, and the ;i(lvers<' party denMirs, he who offers the evidence may join in de- murrer if h«' will. We are therefore thus far advanced, tliat the demurrer to evidence is not necessarily confined to written evidence. The language of our books is ver>' indistinct upon the question, Whether the party offering parol evidence should be obliged to join in demurrer. Why is he obliged to join in demurrer, when the evidence which h(^ has offeretl is in writing ? The reason is given in C'roke's report of Haker's eiuse, because, says the book, " there cannot be any variance of matter in writing." Parol evidence is sometimes certain, and no more admitting of any variance than a matt<'r in WTiting, but it is al.so often |oo.s<' ati on whirli the; court decided (1ml the pl.-iintilT li;ic| f.iilcii to hIiow uny liability on thn part of the defendant, and a fidl cil alien of authorities, is omitted. - Kn. HOPKINS V. RAILROAD 305 sel and consideration by the Court the demurrer was sustained, and the suit dismissed. Plaintiff appealed, and has assigned errors. The first assignment is that the trial Judge erred in allowing de- fendant to file a demurrer to the evidence sustaining the same, and dismissing the suit. It is insisted this action of the Court violates Article 1, Section 6 of the Constitution of the State, which provides that the right of trial by jury shall remain inviolate, etc.; and also Article 6, Section 9, which ordains: " Judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law." . . . We have seen from the authorities that the only province of the jury is to settle disputed questions of fact, while the office of the demurrer to the evidence is to admit the facts and invoke the appli- cation of the law by the Court. Is this practice in any sense an invasion of the constitutional guaranty " that the right of trial by jury shall remain inviolate," or is it subversive of the other provi- sion " that judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law ? " We do not so understand it. It is not so understood in other States of the Union with similar constitutional provisions. . . . It will be perceived, moreover, that in every State of the Union the Judge is allowed to TNithdraw a case from the jury whenever there is a destitution of any competent, relevant, and material evidence to support the issue, and this authority is exercised, either by directing a verdict sustaining a demurrer to the e\adence or en- forcing a compulsory nonsuit, as the practice may prevail in the particular State. This fact is incontestable, and is abundantly showTi in the overflow of cases already'" cited. But it is argued by counsel for plaintiff in error that, whatever may be the practice in other States of the Union, the adjudications of this Court are against either form of practice, and necessarily so, since the Constitution of Tennessee not only secures the right of trial by jur}', but further declares that " Judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law." As already seen, the first clause in respect of the trial by jury, is found in the Constitution of all the States in one form or another, but the latter clause is found in the organic law of only five States. We do not think the latter clause adds anything to the prohibition contained in the first clause. The right of trial by jury, ex vi termini, means that Judges shall not charge juries with respect to matters of fact, but the settlement of all disputed facts shall be left exclusive to their province. This 306 TRIAL Court in the case of Ivey v. Hodges, 4 Hum. 155, stated that the object of this provision of our Constitution was " to put a stop to the practice of sunuiiing up as it was and is yet practised in the Courts of Great Britain, etc., which consists in teUing the jury not what was deposed to, but what was proved." In other words, the Court held that where there is a conflict in tiie testimony, the Judge may state the testimony, but is prohibited from declaring what facts are proved. In the case of Catlett v. Railway, 57 Ark. 401, a similar provi- sion of the Constitution of Arkansas was drawn in question as late as 1893. The Court said: " This provision shears the Judge of a part of his magisterial functions, but it confers no new power upon the jury. It was the jury's province, before this provision was ordained, to pass only upon questions of fact about which there was some real conflict in the testimony, or where more than one inference could reasonably be drawn from the evidence. The Con- stitution has not altered their province. It commands the Judge to permit them to arrive at their conclusion without any suggestion from him as to his opinion about the facts. As Judge Battle ex- pressed it, in Sharp v. State, 51 Ark. 151: * The manifest object of this prohiljition was to give the parties to the trial the full benefit of the judgment of the jury as to facts, unbiased and unaffected by the opinion of the Judges. If there is no evidence to .sustain an issue of fact, the Judge only declares the law when he tells the jury 80.' The legal sufficiency of proof and the moral weight of legally sufficient proof are very distinct in legal idea. The first lies within the province of the Court, tiie last within the province of the jury." Wheeler v. Schroeder, 4 K. I. 383. It will be found that the practice in the five States whose Con- stitutions embody tills additional clause sanction either the com- pulsory nonsuit or the ri^ht of the Judge to direct a verdict, in cither case confessedly a more radical procedure than the demurrer to the evidence. . . . In the present record we are confronte(| with a ]>erfectly |)lain citse, in which no liability is estal)lished against the defcMidant upon the facts, or upon any reasonal)ie or legitimate inference that may be made upon such facts. The law of every case, in whatever form presented, belongs to the C(jurt. It is not only the jirerogative of the Judge, but a solemn duty to declare it. The defendant in this case is entitled to the judgment of the law, u[)on the undisputed facts found in the record. Our duty is im- perative, and, being of opiniiMi that in no view of the facts shown VOLUNTARY NONSUIT OR DISMISSAL 307 in evidence is any liability made out against the defendant com- pany, we affirm the judgment of the Circuit Court. ^ Section V. Voluntary Nonsuit or Dismissal. [Smith, Action at Law (2d ed.), pp. 115-117.] With regard to a nonsuit, — the word is derived from the Latin non sequitur, or, more nearly, from the French ne suit pas, because the plaintiff does not follow up his suit to its legitimate conclusion; for, in the ancient times, before the jury gave their verdict, the plaintiff was called upon to hear it, in order that, if it proved ad- verse to him, he might be held answerable for the fine which was in those days levied upon an unsuccessful plaintiff. If he did not appear when thus called on, he was nonsuited, that is, adjudged to have deserted his action, and the court gave judgment against him for his default. And hence proceeds the ceremony which takes place, even at this day, of calling the plaintiff to come into the court when about to be nonsuited, and warning him, that he will lose his writ of nisi prius, that is, that he wall lose the benefit of the jury process by which he has convened the jury who are now about to become superfluous in consequence of his default in not appearing. Another consequence of the ancient practice is, that a plaintiff can- not be nonsuited against his will ; for a default is, in the nature of things, voluntary, and, w^hen he is called on to appear, he may, if he think fit, make answer by his counsel, and, if he do, there can be no nonsuit; and, although it is usual, and, certainly, highly proper, for the plaintiff's counsel to yield to the opinion of the judge, when the latter intimates that his case is not made out, and that he ought to suffer a nonsuit, still, there have been instances, in which the plaintiff's counsel have persisted in appearing, and have even gained a verdict by their pertinacity. But it is very dangerous to resist the judge when he is of opinion that there ought to be a non- suit, for, if the plaintiff disregard his intimation, he is certain to ^ On the general subject of demurrers to evidence, see Gibson v. Hunter, 2 H. Bl. 187; Fowle v. Common Council of Alexandria, 11 Wheat. (U.S.), 320; Slocum V. New York Life Ins. Co., 228 U. S. 364, 388-392, 409-418, 57 L. ed. 879, 33 S. Ct. 523; Copeland v. New England Insurance Co., 22 Pick. (Mass.), 135; Ware v. McQuillan, 54 Miss. 703; Colegrove v. X. Y. & N. H. R. R. Co., 20 N. Y. 492. And see 2 Tidd, Practice, 9th ed., 865; Thayer, Preliminary Treatise on Evidence at the Common Law, 235-239; Thayer, Cases on Evi- dence, 2d ed., 201-238. — Ed. 308 TRIAL direct the jury to find a verdict for the defendant, and thoiifjjh it is true that the plaintiff, whether he submit to a nonsuit or have a verdict found against him, must equally pay costs to the defendant, still there is this great practical ditTcrence between a verdict for the defendant and a nonsuit, namely, that the former has the effect of forever barring and determining his right of action, whereas, after the latter, he may bring a fresh action, and, if he come prepared with better evidence, may perhaps succeed in it. TEMPLETON & McKEE v. WOLF. Supreme Court of Missouri. 1853. [Reported 19 Missouri, 101.] Gamble, J. In this case, the court having given certain instruc- tions to the jury, after the evidence was closeti, the plaintifTs asked that thej' might be allowed to take a nonsuit, but the court refused to permit it, and a verdict and judgment were given for the defendant. The statutes of this state have always recognized the right of a plaintiff to take a nonsuit, and have limited its exercise to the time previous to the retiring of the jury to consider their verthct. This practice is not affected by the code, being entirely consistent ^\^th it. T}ie judgment is reversed, and the cause remanded, the other judges concurring} FOX V. THE STAR NEWSPAPER CO., LIMITED. House of Lords. 1899. [Rc'imrtorl (1000) A ppml Cfms, 19.] At the trial of this action for lilid before Lord Husscll of Kil- lowen, C. J., and a special jury the ])l;uiitiff through his couns(>l elect(H] to offer no evidence and chiiincd to be nonsuited. The Lord Chief Justice rulcti that there riuist be a verdict for the defendants; the jun' foiuiil ;i \'ei-(lict ;icconlin,iz;l>' ami Judgment. was entered for the defeiidaiits. » See Parks v. Southern Ily. Co., 74 C. C. A. 414, I t.J ImmI. 270; Mooro- MttnHfKfid Co. V. Miirioii, etc., Co., 52 Iiid. App. .'■)4S, 10! N. K. IT); Sli.iw r. \^|»\nuti, IF} (Iruy (Miwh.), .')71 ; C^iirix-ntcr & Somh Co. v. New ^'()rk, etc., U. R., 1H4 .MfWH. UH, (\H N. K. 2H; I^iiwyers' C■ >•. D.illon, m Neb. liH, [Ki N. W. 9:«), 4 Ann. Ca». fiOH. — Ku. FOX V. THE STAR NEWSPAPER COMP.ANY, LIMITED 309 An application to sot aside the verdict and judgment was dis- missed by the Court of Appeal (A. L. Smith, Chitty, and Collins, L. JJ.) with costs. This appeal was brought by the plaintiff. . . . Dec. 15. Earl of Halsbury, L. C. My Lords, this was an action for libel. After the jury had been sworn and the pleadings opened, the plaintiff claimed to be nonsuited; the Lord Chief Justice held that he was not entitled to be nonsuited, and directed a verdict for the defendants. The sole question on this appeal is whether the old system by which a plaintiff at his own election could lose his writ, as it was said, and at his election bring another action for the same cause, is still a system which exists in our law. I am very clearly of opinion that it does not. Our whole system has been changed, and I think the reason why the word " nonsuit " itself is not now to be found in the rules is that it was determined that the power of a plaintiff at the com- mon law to claim a nonsuit, or the plaintiff in equity to dismiss his bill at his own option, should no longer be permitted, and it is probable that the word " discontinuance " was supposed to apply to both forms of procedure both at common law and in equity. Accordingly by Order xxvi., r. 1,^ the only mode by which a plaintiff' can submit to defeat is under that Order, unless he allows the proceedings to go on until the verdict is recorded against him. The word " discontinuance " no doubt had, under a former system, the more limited application, and the old system of non- suit is manifestly no longer capable of being reconciled with the new procedure either in form or substance. The substance is that when it once comes into court, and when the plaintiff offers no support to his action, there must be a verdict for the defendant. That is the course pursued by the Lord Chief Justice. I think it was entirely right, and I move your Lordships that this appeal be dismissed with costs. Lords Macnaghten, Morris, and Shand concurred. Order appealed from affirmed and appeal dismissed with costs. 1 Order XXVI, rule 1, provides: "The plaintiff may, at any time before receipt of the defendant's defence, or after the receipt thereof before taking any other proceeding in the action (save any interlocutory apphcation), by notice in writing, wholly discontinue his action against all or any of the de- fendants or withdraw any part or parts of his alleged cause of complaint, and thereupon he shall pay such defendant's costs of the action, or if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn. Such costs shall be taxed, ami such discontinuance or withdrawal, as the case 310 TRIAL HUFFSTUTLER v. LOUISVILLE PACKING COMPANY. Supreme Court of Alabama. 1908. [Reported 154 Alabama, 291.] Appe.\l from Birmingham City Court. Heard before Hon. C. W, Fkrguson. Action by the Louisville Packing Company against Hamilton H. Huffstutler. From a judgment granting a motion of plaintiff to dismiss the suit, defendant appeals. Affirmed. Defendant interposed as a defense to the suit a counterclaim by way of set-off and recoupment. After the plaintiff had made out its case, which was not denied by the defendant, and after the de- fendant had introduced evidence of his counterclaim or set-off, the plaint ifT offered to take a nonsuit, with bill of exceptions. The court refused to allow the plaintiff to take this nonsuit, and there was verdict and judgment for the defendant against the plaintiff in the sum of S620. The plaintiff thereupon moved the court to set aside the judgment, on the ground that the court erred in not allowing plaintiff to take his nonsuit, and from this motion setting aside the verdict and judgment this appeal is prosecuted. . . . Anderson, J. The general rule is, where the plaintiff has in- stituted a civil action, he has the right to dismiss or discontinue at his owTi cost at any time before verdict. This practice has been adopted, even in those cases where the defendant has pleaded a set-off and introduced evidence to sustain it. — Griel v. Loftin, 65 Ala. 591; Branham v. Brown's Adm'x, 1 Bailey (S. C), 262; Cum- mings V. Pruilen, 11 Mass. 206; Waterman on Set-Off, 659, 660; Breese v. Allen, 12 Ind. 426; Moore v. Bres, 18 La. Ann. 483. It is insisted by counsel for the appellant that the rule above declared is merely applicable to the common law, which does not authorize judgment over for the defendant when the cross-demand exceetls tin; jjlaintiff's claim; that our statutes authorize a judg- ment over for the defendant, upon pleas of set-off and recoujjment; and that what was said in the case of Griel v. Loftin, supra, wjis dictum. We concede that what was .said in that case, on this sui)- rniiy \>c, hIihII not he a dcfcnrf to any Huhsciiuciit action. Save jus in this rule othcTwiw provided, it Hhall not he conipt'tcnt for the |)laintilT to witlnlraw the n-cord or diHcontinuc the action without icavc of the court or a judnc, but thr- court or u jiidn'" niay, hcfon', or at, or after the liearinj^ or trial, upon HUch tt-rniM (iH t*> coHtH, and hh to any otiier action, and otherwise iw may l)e juHt, order the iirti«)n to he diHContinued, or any part of the alle>;eil c.iuse of com- plaint to be Htruok out." - - V.t). HUFFSTUTLER V. LOUISVILLE PACKING COMPANY 311 ject, was dictum, as this question was not there involved; but the expression of the writer seems to be fortified by the weight of au- thority, and what was there said is appHcable in jurisdictions where judgment over is provided, as well as under the common law. — Anderson v. Gregory, 43 Conn. 61; Merchants' Bank of Canada v. Schulenberg, 54 Mich. 49, 19 N. W. 741. This Michigan case was by a divided court, and resulted in an affirmance of the doctrine that the plaintiff can dismiss his suit at any time before verdict, although the defendant claimed a judgment over, and was author- ized, under the statute, to recover for said excess. The opinion which controlled in this case was rendered by Cooley, C. J., and as it deals with several authorities on the subject, including the case relied upon by appellant's counsel, of Riley v. Carter, 3 Humph. (Tenn.), 230, we quote at length: " In this case the de- fendant rehed upon a set-off, which, he claimed, was larger than the plaintiff's demand, and he brings the case to this court, assign- ing for error the order of the circuit court permitting the plaintiff, notwithstanding his objection, to submit to a nonsuit. The gen- eral right of the plaintiff to discontinue his suit, or to submit to a nonsuit, at any time before verdict, is undoubted; and, in the absence of any statute taking away the right, it exists in the cases where set-off is relied upon to the same extent as in other cases. This is fully recognized in Cummings v. Pruden, 11 Mass. 206, and Branham v. Brown's Adm'x, 1 Bailey (S. C), 262. In several states statutes have been passed taking away the right; but we have no such statute. The fact that the statute of set-offs permits judg- ment to be taken by the defendant for the balance found due him does not preclude a discontinuance. — Cummings v. Pruden, supra. But it is said there are decisions to the contrary of these, and several are referred to. The Texas cases are not in point, as they are decided under the civil law, which does not prevail in this state. — Egery v. Power, 5 Tex, 501; Walcott v. Hendrick, 6 Tex. 406; Bradford v. Hamilton, 7 Tex. 5. The case of Francis v. Edwards, 77 N. C. 271, was decided upon a construction of the Code of that state, and therefore has no bearing. In Riley v. Carter, 3 Humph. (Term.), 230, the defendant had obtained judgment for his set-off in justice's court, and the plaintiff removed the case to the circuit court by certiorari, and then, in that court, was given leave to dis- miss his suit. This was palpable error, and the court so held; but we discover no analogy between that case and this. The defendant had his judgment, and, unless error was shown, had a right to retain it. The three New York cases of Cockle v. Underwood, 3 Duer 312 TRIAL (N. Y.), 676, Rees v. Van Patten, 13 How. Prac. 258, and Van Allen I', Schermerhorn, 14 How. Prae. 287, are not in point, because de- cided under the state Code; but, so far as the}^ can be considered as having a bearing they are against the defendant, instead of for him, for they all recognize the power of the court in its discretion to permit the plaintiff to cUscontinue, which is all that is necessary to sustain this judgment." It seems that the statement by the compiler on page 848 of 6 Am. & Eng. Enc3^ of PI. & Pr., as to the modem rule, is not sus- tained by the weight of authority as to actions of law, but does ol)tain in chancery. The loading authority to the effect that a dismissal by the plaintiff will not deprive the defendant of his right to a judgment over is the case of East St. Louis v. Thomas, 102 111. 453. In that jurisdiction, they have a statute providing that, " when a plea of set-off shall have been interposed, the plaintiff shall not be permitted to cUsmiss his suit without the consent of the defendant or leave of court." Whether the plaintiff was entitled to a bill of exceptions, under section 614 of the Code of 1896, or not, because his claim was ad- mitted by the defendant and there was no adverse ruling in refer- ence to same, we need not decide, as it is clear he had the right to nonsuit or dismiss at any time before the verdict. The trial court erred in not permitting the plaintiff to dismiss his case, and properly corrected the error by granting the motion for a new trial. The judgment of the city court is affirmed} Tyson, C. J., and Simpson and McClellan, JJ., concur. * For conflictinR views on the c|iu'.stion involved in the principal case, see Fowler v. Law.son, 1.5 .fVrk. 148; Gurr i'. Brinson, 138 Ga. 005, 75 S. E. 979; Hickman v. Hunter (la., 1913), 140 N. W.425; CumniinKs c. Pruden, 11 Mass. 2(XJ; Fink v. Hriiihl, 47 Mo. 173; Hamlin v. Walker, 228 Mo. Oil, 128 S. VV. 945; IJlock v. OttenlxTK, 53 N. Y. Mi.sc. Hep. 047, 103 N. Y. Supp. 739; Boyle t;. StailinKH, 140 X. C. .524, .53 S. K. 34r); Bertschv v. McLeod, .32 Wis. 205. Sec 2 'i'lioiniwon Trialw, 2d ed., sec. 2232, and a note to the princijjal case in 15 L. K. A. (N.H.), 340. — Ku. CENTRAL TRANS. CO. V. PULLMAN's CAR CO. 313 Section VI. Compulsory Nonsuit or Dismissal and Directed Verdict. CENTRAL TRANSPORTATION COMPANY v. PULLMAN'S PALACE CAR COMPANY. Supreme Court of the United States. 1891. [Reported 139 United States, 24.] Gray, J.^ The principal defence in this case, duly made by the defendant, by formal plea, as well as by objection to the plaintiff's evidence, and sustained by the Circuit Court, was that the in- denture of lease sued on was void in laAv, because beyond the powers of each of the corporations by and between whom it was made. There is a preliminary question of practice, arising out of the manner in which the case was disposed of below, which is deserving of notice, although not mentioned by counsel in argument. The Circuit Court, in ordering a nonsuit because in its opinion the evidence offered by the plaintiff was insufficient in law to main- tain the action, acted in accordance with the statute of Pennsyl- vania, which provides that " it shall be la^vful for the judge presiding at the trial to order a judgment of nonsuit to be entered, if in his opinion the plaintiff shall have given no such evidence as in law is sufficient to maintain the action, with leave, nevertheless, to move the court in banc to set aside such judgment of nonsuit; and in case the said court in banc shall refuse to set aside the non- suit, the plaintiff may remove the record by writ of error into the Supreme Court for revision and review, in like manner and with like effect as he might remove a judgment rendered against him upon a demurrer to evidence." Penn. Stats., March 11, 1836, c. 34, § 7; March 11, 1875, c. 8; 2 Purdon's Digest (11th ed.), 1362, 1363. Under that statute, as expounded by Chief Justice Gibson, the judge can order a nonsuit, only when all the evidence introduced, with every inference of fact that a jury might draw from it in favor of the plaintiff, appears to be insufficient in matter of law to sustain a verdict; and the defendant's motion for a nonsuit is equivalent to a demurrer to evidence, differing only in the judgment thereon not being a final determination of the rights of the parties, for if it ^ The statement of facts is omitted together with a part of the opinion in which it was held that the contract sued on was vltra vires. — Ed. 314 TRIAL is in favor of the plaintiff the case must be submitted to the jury, and if in favor of the defendant it is no bar to a new action. Smyth V. Craig, 3 Watts & Sergeant, 14; Fleming v. Insurance Co., Brightly, 102; Bournonville v. Goodall, 10 Penn. St. 133. It is true that a plaintiff, who appears by the record to have vol- untarily become nonsuit, cannot sue out a writ of error. United States V. Evans, 5 Cranch, 280; Evans v. Phinij)s, 4 Wheat. 73; Cossar r. Reed, 17 Q. B. 540. But in the case of a compulsory nonsuit it is other^^'ise; and a plaintiff, against whom a judgment of nonsuit has been rendered wthout his consent and against his objection, is entitled to relief by writ of error. Elmore v. Grymes, 1 Pet. 469; Strother v. Hutchinson, 4 Bing. N. C. 83; S. C. 5 Scott, 346, 6 Dowling, 238; Voorhees v. Coombs, 4 Vroom, 482. There are many cases in the books, in which this court has held that a court of the United States had no power to order a nonsuit without the plaintiff's acquiescence. Elmore v. Grymes, above cited; Crane v. Morris, 6 Pet. 598, 609; Silsby v. Foote, 14 How 218; Castle v. Bullard, 23 How. 172, 183. Yet, instead of over ruling, upon that ground alone, exceptions to a refusal to order a nonsuit, this court, more than once, has considered and determined questions of law upon the decision of which the nonsuit was refused in the court below. Crane v. Morris and Castle v. Bullard, above cited. The difference between a motion to order a nonsuit of the i)lain- tiff and a motion to direct a verdict for the defendant is, as observed by Mr. Justice Field, dcliviTiug a recent opinion of this court, " rather a matter of form tiian of substance, excei)t [that] in the case of a nonsuit a new action may Ix' brought, whereas in the case of a verdict the action is ended, unless a new trial be granted, either upon motion or upon appeal." Oscanyan v. Arms Co., 103 U. S. 261, 264. Whether a defendant in an action at law may present in tho. one form or in the other, or by dciiiurrcr to tiie evidence, the defence that the plaintiff, upon his own case, shows no cause of action, is a question of " practice, j>leadings, and forms and modes of j)roceed- ing," as to which the courts of the United States are now retjuired by the act of Congress of June 1, 1X72, c. 2.")."), § f) (17 Stat. 197), n'Onacted in § 914 of the Hevised Statutes, to conform, as near as may be, to those; existing in the courts of the State within which the trial is had. Sawin /•. Kciuiy, 93 l'. S. 289; Ex parte Boyd, 10.') U. S. 617; Chateaugay ("o., jjclitioner, 12S U. S. nil; Glenn V. Sumner, 132 I'. S. ir)2, ir)6. FLETCHER V. LONDON AND NORTHWESTERN R. CO. 315 It is doubtless within the authority of the presiding judge, and is often more convenient, in order to prevent the case from being brought up in such a form that the judgment of the court of last resort will not finally determine the rights of the parties, to adopt the course of directing a verdict for the defendant and entering judgment thereon. But the judgment of nonsuit, being a final judgment disposing of the particular case, and rendered upon a ruling in matter of law duly excepted to by the plaintiff, is subject to be reviewed in this court by writ of error. It was therefore rightly assumed by the counsel of both parties at the argument that the only question to be determined is of the correctness of the ruling sustaining the defence of ultra vires, inde- pendently of the form in which that question was presented and disposed of. . . . Judgment affirmed.^ Mr. Justice Brown, not having been a member of the court when this case was argued, took no part in its decision. FLETCHER v. LONDON AND NORTHWESTERN RAILWAY COMPANY. Court of Appeal. 189 L [Reported (1892) 1 Queen's Bench, 122.] Motion by the plaintiff for a new trial. The action was for damages for personal injuries alleged to have been caused through the negligence of the defendants' servants. At the trial, Wright, J., after hearing the opening of the plain- tiff's counsel, stating the case which he expected to prove, non- suited the plaintiff without the consent of his counsel, and in spite of his insisting that he ought to be allowed to call his witnesses. * There is a conflict of authority on the question whether the plaintiff may be nonsuited against his will. See cases cited in Hopkins v. Nashville C. & St. L. Ry., 96 Tenn. 409, 34 S. W. 1029, 32 L. R. A. 354; 2 Thompson, Trials, 2d ed., sec. 2228. A territorial statute allowing a compulsory nonsuit does not deprive the plaintiff of the right of trial by jury under the Seventh Amendment to the Constitution of the United States. Coughran v. Bigelow, 164 U. S. 301, 41 L. ed. 442, 17 S. Ct. 117. A conpulsory nonsuit, like a voluntary nonsuit, does not deprive the plain- tiff of the right to bring a new action for the same cause. Mason v. Kansas City Belt Ry. Co., 226 Mo. 212, 125 S. W. 1128, 26 L. R. A. (n.s.), 914. — Ed. 316 TKIAL Lord Esher, M. R.' I am of opinion that the learned judge struck too soon. I will state the proposition in its broadest form. In my opinion a judge has no right, without the consent of the plaintiff's counsel, to non-suit the jilaintiff upon his counsel's open- ing statement of the facts. The opening of counsel may be incor- rect in consequence of his having had wrong instructions. Owing to some accitlent, even with the greatest care, the evidence of the witnesses when they are called may differ from that which has been opened by counsel. It is for that very reason that a right of reply is given to the plaintiff's counsel, and in recent times a right to sum up the evidence has been given to the plaintiff's counsel, and the defendant's respectively, after his witnesses have been called. The experience of judges and of practitioners shews that the evidence often turns out to be somewhat different from that which appears in the instructions given to counsel. Therefore I state this prop- osition in its full extent — a judge has no right to non-suit a plaintiff upon his counsel's opening without the consent of the counsel. That is what the learned judge has done in the present case. There was no assent on the part of the plaintiff's counsel. On the contrary, the plaintiff's counsel insisted upon his right to have the plaintiff's witnesses called, but, notwithstanding this, the learned judge persisted in non-suiting the plaintiff on his counsel's opening. I think he was wrong in so doing, and the case must go down for trial. Order for new trial accordingly} KELLY, Administrator, v. BERGEN COUNTY GAS CO. Court of Errors and Appeals of New Jersey. 1907. [Reported 74 New Jersey Law, ()04.1 Magie, Chancellor.' Upon the openinji; of (he counsel for tlie plaintiff in the trial of the issue in this cause the learned trial justice directed a nonsuit. Thereafter, judgment for tiie defendant wjis entered and this writ of error was taken. The error assigned was the granting of the nonsuit. ' Tho concurriiin opinions of Lopes, L.J., and Kuy, L.J., arc omitted. — Ed. » I'ielHch V. I'iet.sch, 2\'i III. 4r,t, 02 N. V.. Wir^, 2<) L. R. A. (n.s.), 218; Fi«her i'. FiHlier, 5 Wi.s. 472, ucrnnl. Oscianyan r. WinclK'ster Ilepeatiiifj Arms Co., KKJ Vi. S. 201, 20 L. ed. W.J; Hey v. IVinie, l'.t7 .Miis.s. 474, S4 N. K. 141, 17 L. R. A. (N.H.), 570 {HembUi); CriHup v. (;ro.H.slinhi, 7<.) Mich. liSO, 44 N. VV. r.21; Pratt V. Conway, 148 Mo. 21tl, 49 S. W. 1()2S, 71 An». St. Rej). (502 (aemljU), contra. — • Kn. * A jtart of tli(! oj)inion i.s omitted. V.\). KELLY V. BERGEN COUNTY GAS COMPANY 317 A motion for a nonsuit upon the opening of counsel is not fre- quently resorted to. In dealing with it, it is obvious that the rule which is applied to a motion for a nonsuit at the close of plaintiff's evidence is the one which should be apphed. In both cases, the question presented is whether the facts stated or proved, and rea- sonable inferences which may be drawn therefrom, disclose that the plaintiff is not entitled to submit his case to the jury, because a ver- dict in his favor could not be maintained. In practice, a motion for a nonsuit, made upon the opening of counsel, is, perhaps, more liberally treated than an application for a nonsuit at the close of the plaintiff's case. In the former case, if objection be made to a statement too meagre to sustain the plaintiff's case, counsel will, doubtless, be permitted to enlarge his statement. But in the haste required by the pressure of business at the present day, counsel, in general, restrict themselves to a mere outline of the case they de- sign to present. The opening appearing in the bill of exceptions is somewhat meagre, and if objected to on that ground, counsel would, no doubt, have been permitted to make his statement more complete. But I think it does present a case for the jury if the facts stated therein were proved. It appears thereby that the defendant com- pany, which furnishes light to a municipality, maintained wires upon a pole, and through those wires transmitted at times a current which was dangerous. Upon the same pole were strung wires of a telephone company by which plaintiff's intestate was emploj-ed as a Uneman. The nature of the relation between the telephone com- pany and the defendant company was not stated in the opening. But from the fact that the telephone company was maintaining the wires used in the business of that company upon the pole, it may be reasonably inferred that that company had acquired a right to so maintain them. If that inference were drawn, it would also follow that the telephone company had a right to resort to those wires for repairing and rearranging them. Its workmen, when sent to make repairs or to rearrange the wires, if in such em- ployment they were required to ascend the poles, would not be trespassers, nor would they resort to the summit of the poles out of mere curiosity, but they would be there to exercise the right which their employer had in respect to its wires. It would also follow that the defendant company might be inferred to have knowledge that in the exercise of that right of the telephone com- pany the workmen of the latter company would be compelled to ascend the poles and be brought into very close proximity with the 318 TRIAL wires of the defendant company, and it might be therefrom in- ferred that a duty devolved ui)on the company to use reasonable care not to endanger the safety of such workmen bj- the dangerous current parsing through its wires. , . . Counsel, in his opening, asserted tiiat the defendant company had failed in the performance of the duty cast upon it in two re- spects — first, by having its wires aj^parently insulated while the insulation was, in fact, defective; and second, l)y sending a dan- gerous current through its wires at a time which was unusual and without notice. The defendant company was a company for lighting the munic- ipality and, customarily, sent its current through the wires only after the lights were required to be used. The plaintiff's intestate was killed by a current passing through the wares at half-past four in the afternoon, in midsummer. If the motion for a nonsuit had been made upon the ground that the opening failed to disclose an act of negligence on the part of the defendant company, I think it would have been properly re- fused. For the reasons above given, I think that the opening, though meagre in statement, yet contained enough facts which permitted sufficiently reasonable inferences therefrom, so as to make out the i)laintiff's case, if the facts were proved. But the application was distinctly put by counsel for the defend- ant company upon an admission made in the opening to the effect that plaintiff's intestate had handled the wire of the defendant company with naked hands and without the protection of rubber gloves, and that that admission indicated that the deceased had failed to take that care for his personal safety which every man is required to take, and thereby negligently contributed to the injury which occasioned his death. It is obvious, moreover, from the collocjuy which took place between the trial justice and the counsel, that the granting of the motion to nonsuit wius placed by the justice entirely upon this ground, and he gave no consideration whatever to any sujjposcd defect in the ()[)('iiiiig on any oilier point. As was said by Justice O'Brien in the case of Hoffman House v. Foote, 172 N. Y. 348, in dealing with a question of a judgment dismissing the i)laiiitiff's complaint upon the opening of counsel, the plaintiff's coun.sel may, in his opening address, by some admis- sion (jr statement of facts, so completely ruin his case that the court is justified in granting a nonsuit. That was the position which the defendant (•onj{)any assumed in supporting this .Mpplicalion for a nonsuit, and the learned justice who presided at the trial found BERRY V. DRYDEN 319 that by the admission of the counsel of the plaintiff a fact was in- troduced which required the case to be taken from the jury. But the learned trial justice, in reaching the conclusion that the contributory negligence of plaintiff's intestate was a necessary in- ference from the admitted fact that he handled the wire without the protection of rubber gloves, ignored two facts also stated in the opening. One fact was that the wire handled appeared to be pro- tected by insulation, but that the insulation was defective. The other fact was that the wires of the defendant company did not ordinarily carry any current in the daytime, which fact was known to plaintiff's intestate. In my judgment, upon the whole opening, if proved, it was for the jury to say whether, -with this knowledge, the lineman was neg- ligent in assuming that there was no risk in handling such a wire, which was not then customarily employed in distributing a current for electric light, and which appeared to be insulated. The case, in respect to assumption of risk, is not unlike the case of Snyer v. New York and New Jersey Telephone Co., 44 Vroom, 535, in which, under similar circumstances, this court declared that there was a question for the jury on that subject. The result is that the judgment must be reversed for a venire de novo} For affirmance — None. For reversal — The Chancellor, Chief Justice, Garrison, Fort, Hendrickson, Pitney, Swayze, Reed, Bogert, Vreden- BURGH, Vroom, Green, Dill, JJ. 13. BERRY V. DRYDEN. Supreme Court of Missouri. 1842. [Reported 7 Missouri, 324.] ScoTT, J. 2 Francis Berry brought an action of slander against William Dryden. The declaration contained four counts, of which the plaintiff relied on the first two. In these, the words charged to have been spoken, were the following: " He (meaning the plain- » Butler V. National Home, 144 U. S. 64, 36 L. ed. 351, 12 S. Ct. 581; Brashear v. Rabenstein, 71 Kan. 455, 80 Pac. 950; D'Aloia v. Unione Fratel- lanza, 84 N. J. L. 683, 87 Atl. 472; Hoffman House v. Foote, 172 N. Y. 348, 65 N. E. 169, accord. As to the right to change the opening statement, see Barto v. Detroit Iron & Steel Co., 155 Mich. 94, 118 N. W. 738. — Ed. * A part of the opinion is omitted. — Ed. 320 TRIAL tiflf), had sworn a lie in Kcntiu-ky, anil that it was in him, for he had sworn what he could prove to l)e a i^oint blank lie, this day, before Squire Davis. ..." On the trial it was proved that the defendant hatl said of the plaintiff, that he had sworn oif a just account, before Squire Davis, and that he would, or could prove it, at the circuit court by a wit- ness; that he had been had uj) for jHTJury in Kentucky, and the records would show it. The defendant's counsel moved the court to instruct the jury, that the words laid in the declaration were not sui)i)orted by the proof. This instruction was given and excepted to, and is now assigned for error. The i)laintifT has made a preliminary objection to the instruction, and insists, that it is the province of the jury and not of the court, to determine whether there is such an identity between the words proved, and those laid in the declaration, as will support the action. This position cannot be maintained. Whether a variance exists or not, between the declaration and proof, is a question exclusively for the determination of the court. The jury ascertains what words were spoken, and if there is a variance between them and the words contained in the declaration, will look to the opinion of the court, in order to be informed, whether it is of such a nature as will defeat -the action. After the many decisions that have been made on the subject of variance, in actions of slander, no authority will be required, to show that the words proved to have been si)oken, are not substan- tially the same as those laid in the declaration. The rule is stated in the books, that the slander proved must substantially corre- spond with that charged in the declaration. By this, it is not to be understood, that if certain words are employed to convey a slanderous imputation, those words will support a declaration con- taining the same im})utation in dilTerent words. The meaning of the rule seems to be, that, if tlic words charged to have been spoken are proved, but with the omission, or addition of others not at all varying, or alTecting their sense, the variance will not be regarded. Alth(jugh the words i)roved are ecjuivalent to the words charged in the declaration, yet not being the same in substance, an action cannot l)e maintained; and although the same idea is conveyed in the words charged and thosc^ proved, yet if they are not substan- tially the same words, though they contain the same charge, but in different phrasr-ology, the plaint ilT is not entitlcfj to rcc(»\rr. In Maitland r. (I(jldney, 2 lOast, -liiS, it is said, " Tliough the ])hiiiitiff BERRY V. DRYDEN 321 need not prove all the words laid, yet he must prove so much of them, as is sufficient to sustain his cause of action, and it is not enough for him to prove equivalent words of slander." It is neces- sary that this rule be adhered to, in order to let the party know what he has to defend, and that he may not be h(dd responsible for the misunderstanding of the witnesses, as he might, if they were permitted to testify as to the import of his words. 2 Phil. Evi- dence, 97. . . . The judgment will be affirmed.^ [3 & 4 William IV., Chapter 42, Section 23, (1833).] " And whereas great Expence is often incurred, and Delay or Failure of Justice takes place, at Trials, by reason of Variances as to some Particular or Particulars between the Proof and the Record or setting forth, on the Record or Document on which the Trial is had, of Contracts, Customs, Prescriptions, Names, and other Matters or Circumstances not material to the Merits of the Case, and by the Mis-statement of which the opposite Party cannot have been prejudiced, and the same cannot in any Case be amended at the Trial, except where the Variance is between any Matter in Writing or in Print produced in Evidence and the Record : ^ And whereas it is expedient to allow such Amendments as herein-after mentioned to be made on the Trial of the Cause; " be it therefore enacted, That it shall be lawful for any Court of Record, holding Plea in Civil Actions, and any Judge sitting at Nisi Prius, if such Court or Judge shall see fit so to do, to cause the Record, Writ, or Document on which any Trial may be pending before any such Court or Judge, in any Civil Action, or in any Information in the Nature of a Quo warranto, or Proceedings on a Matidamus, when any Variance shall appear between the Proof and the Recital or setting forth, on the Record, Writ, or Document on which the Trial is proceeding, of any Contract, Custom, Prescription, Name, or other Matter, in any Particular or Particulars in the Judgment of such Court or Judge not material to the Merits of the Case, and by which the opposite Party cannot have been prejudiced in the Conduct of his Action, Prosecution, or Defence, to be forthwith amended by some Officer of the Court or other\\ase, both in the Part of the Pleadings where such Variance occurs, and in every other Part of the Pleadings which it may become necessary to amend, on such Terms as to Payment of Costs to the other Partj^, or postpon- 1 See Stephen, Pleading, Williston's ed., p. *93; Tidd, New Practice, p. 512; Thompson, Trials, 2d ed., sees. 2251-2262. — Ed. - See Stat. 9 Geo. IV. c. 15. — Ed. 322 TRIAL ing the Trial to be had before the same or another Jury, or both Payment of Costs and Postponement, as such Court or Judge shall tliink reasonable; and in ca.se such Variance shall be in some Par- ticular or Particulars in the Judgment of such Court or Judge not material to the Merits of the Case, but such as that the opposite Party may have been prejuthced thereby in the Conduct of his Action, Prosecution, or Defence, then such Court or Judge shall have Power to cause the same to be amended upon Payment of Costs to the other Party, and withdrawing the Record or postpon- ing the Trial as aforesaid, as such Court or Judge shall think rea- sonable; and after any such Amendment the Trial shall proceed, in case the same shall be proceeded with, in the same Manner in all respects, both with respect to the Liability of Witnesses to be in- dicted for Perjury, and otherwise, as if no such Variance had ap- peared; and in case such Trial shall be had at N'isi Prius or by virtue of such Writ as aforesaid, the Order for the Amendment shall be indorsed on the Posten or the Writ, as the Case may be, and returned together with the Record or Writ, and thereupon such Papers, Rolls, and other Records of the Court from which such Records or Writ issued, as it may be necessary to amend, shall be amended accorthngl}'^; and in case the Trial shall be had in any Court of Record, then the Order for Amendment shall be entered on the Roll or other Document upon which the Trial shall be had; provided that it shall be lawful for any Party who is dissatisfied with the Decision of such Judge at Nisi Prius, Sheriff, or otlier Officer, respecting his Allowance of any such Amendment, to ai)i)ly to the Court from which such Record or Writ issued for a new Trial upon that Cround, and in case any such Court shall think sucli Amendment iini)r(Ji)er, a new Trial shall be granted accordingly, on such Terms as the Court shall think fit, or the Court shall make such other Order as to them may seem meet. [X<'\v York Code of Civil Proocflurc.l Sec. 539. A variance, between an allegation in a j)l«'a(ling aiul the proof, is not material, unless it has actually misled the adverse I)arty, t(^ his prejudice, in maintaining his action or defence, upon the merits. If a l)arty insists that, he has been misled, that fact, and tin- parti(;ulars in which he has hren misled, must. i)e pro\'ed to t Ik; .satisfaction of the court. riicreiipon the court may, in its discretion, order tlu; pleading to he amended, u])on such terms as it deems just. EWING V. GOODE 323 Sec. 540. Where the variance is not material, as prescribed in the last section, the court may direct the fact to be found according to the evidence, or may order an inamediate amendment, without costs. Sec. 541. Where, however, the allegation to which the proof is directed, is unproved, not in some particular or particulars only, but in its entire scope and meaning, it is not a case of variance, within the last two sections, but a failure of proof. EWING et al. v. GOODE. Circuit Court of the United States, Southern District OF Ohio. 1897. [Reported 78 Federal Reporter, 442.] Taft, Circuit Judge. ^ In this case the petition of NelUe Ewing, the plaintiff, alleges that she employed the defendant, Goode, a surgeon and oculist, to cure her of a certain malady of her eye, for a reward to be paid therefor; that defendant entered upon such employment, but did not use proper care and skill in the operating on the eye of plaintiff, and did not bestow proper attention and treatment upon the eye after the operation, causing her to suffer great pain, and to lose the right eye entirely, and to impair the sight of her left eye. The answer of the defendant denies unskil- fulness or lack of attention on his part and any injury to the plaintiff caused thereby. . . . Before the plaintiff can recover, she must show by affirmative evidence — first, that defendant was unskilful or negligent; and, second, that his want of skill or care caused injury to the plaintiff. If either element is lacking in her proof, she has presented no case for the consideration of the jury. The naked facts that defendant performed operations upon her eye, and that pain followed, and that subsequently the eye was in such a bad condition that it had to be extracted, establish neither the neglect and unskilfulness of the treatment, nor the causal connection between it and the un- fortunate event. A physician is not a warrantor of cures. If the maxim, " Res ipsa loquitur,'* were applicable to a case like this, and a failure to cure were held to be evidence, however slight, of negli- gence on the part of the physician or surgeon causing the bad result, few would be courageous enough to practise the healing art, for * A part of the opinion, in which the learned judge examined the evidence, is omitted. — Ed. 324 TRIAL they would have to assume financial liability for nearly all the " ilis that fle.sh is heir to." The preliminary question for the court to settle in this case, therefore, is whether there is any evitlence sufficient in law to sus- tain a verdict that defendant was unskilful or negligent, and that his want of skill or care caused injury. In the courts of this and other states the rule is that if the i)arty having the burden of proof offer a mere scintilla of evidence to support each necessary element of his case, however overwhelming the evidence to the contrary, the court must submit the issue thus made to the jury, with the power to set asitle the verdict if found against the weight of the evidence. In the federal courts this is not the rule. According to their practice, if the party having the burden submits only a scintilla of evidence to sustain it, the court, instead of going through the useless form of submitting the issue to the jury, and correcting error, if made, by setting aside the verdict, may in the first instance direct the jury to return a verdict for the defendant. Hence our inquiry is: Does the case now submitted show more than a scintilla of evidence tenthng to show want of skill or care by defendant, or injury caused thereby ? Railway Co. v. Lowery, 20 C. C. A. 596, 74 Fed. 4G3. . . . The condition of the plaintiff cannot but awaken the sympathy of every one, but I must hold that there is no evidence before the court legally sufficient to support a verdict in her favor. I should deem it my duty without hesitation to set aside a verdict for the plaintiff in this case as often as it could be rendered, and, that being true, it becomes my duty to direct a verdict for the defendant.^ McDonald, as administratrix, v. THE METROPOLITAN STREET RAILWAY COMPANY. Court of Appeals of New York. 190L ll{cp()rtc See Ryder r. Womhwell, I.. I!, 1 I'.xcli. .'VJ; Hiddlo v. National Fire, etc., ('o., [1S'.)01 A. (>. .'i72; Coiiiinissioiiers of Msirioii County ''. (Murk, 1»4 V. S. 27S, 21 L. cd. ri'J; Offutt, v. Columliiiin i:xpo.sition, 175 111. 47'2, T)! N. E. Ofjl; HillytT V. DirkiiiHori, I'.l Mhh.-i. rAY2, 2H \. K. \H)r>; 'riie<.l)Mld v. Shepiird, 75 N.n..'2, 71 .\tl.2ti. Hut see Wlmley v. liiirllett, 42.S.C. 451, 20 S. K.745.— Eu. Mcdonald v. metropolitan street r. co. 325 entered upon a verdict directed by the court and an order denying a motion for a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. Martin, J. This action was for personal injuries resulting in the death of the plaintiff's intestate, and was based upon the al- leged negligence of the defendant. An appeal was allowed to this court upon the ground of an existing conflict in the decisions of different departments of the Appellate Division as to when a ver- dict may be directed where there is an issue of fact, and because in this case an erroneous principle was asserted which, if allowed to pass uncorrected, would be likely " to introduce confusion into the body of the law." Sciolina v, Erie Preserving Co., 151 N. Y. 50. The court having directed a verdict, the appellant is entitled to the most favorable inferences deducible from the evidence, and all dis- puted facts are to be treated as established in her favor. Ladd V. JEtna Ins. Co., 147 N. Y. 478, 482; Higgins v. Eagleton, 155 N. Y. 466; Ten Eyck v. Whitbeck, 156 N. Y. 341, 349; Bank of Monongahela Valley v. Weston, 159 N. Y. 201, 208. If believed, the testimony of the plaintiff's witnesses was suffi- cient to justify the jury in finding the defendant negligent and the plaintiff's intestate free from contributory negligence. The evi- dence of the defendant was in many respects in direct conflict, and if credited would have sustained a verdict in its favor. Whether the defendant was negligent, the plaintiff's intestate free from con- tributory negligence, and the amount of damages, were submitted to the jury. It, however, having agreed upon a general verdict and failed to answer the questions submitted, the trial judge with- drew them and directed a verdict for the defendant. Upon the verdict so directed a judgment was entered. Subsequently an appeal was taken to the Appellate Division, where it was affirmed, and the plaintiff has now appealed to this court. Although there was a direct and somewhat severe conflict in the evidence, the questions of negligence and contributory negligence were clearly of fact, and were for the jury and not for the court unless the right of trial by jury is to be partially if not wholly' abolished. It was assumed below that the plaintiff's evidence established a case which, undisputed, was sufficient to warrant a verdict in her favor. But the court said that at the close of the defendant's evidence the plaintiff's case had been so far overcome that a verdict in her favor would have been set aside as against the weight of evidence. Upon that alleged condition of the proof, it 326 TRIAL held that the trial court might have properly submitted the case to the jury if it saw tit, but that it was not required to as the verdict might have been thus set aside. The practical result of that de- cision, if sustainctl, is in every close case to vest in the trial court authority to determine questions of fact, although the parties have a right to a jury trial, if it thinks that the weight of evidence is in favor of one and it directs a verdict in his favor. There have been statements b}' courts wliich seem to lend some justification to that theory, but we think no such broad principle has been intended antl that no such rule can be maintained either upon principle or authority. The rule that a verdict may be directed whenever the proof is such that a decision to the contrary might be set aside as against the weight of evidence would be both micertain and delusive. There is no standard by which to deter- mine when a verdict may be thus set aside. It depends upon the cUscretion of the court. The result of setting aside a verdict and the result of directing one are widely dilYerent and should not be controlled by the same conditions or circumstances. In one case there is a re-trial. In the other the judgment is final. One rests in discretion; the other upon legal right. One involves a mere matter of remedy or procedure. The other determines substan- tive and substantial rights. Such a rule would have no just prin- ciple upon which to rest. While in many cases, even where the evidence is sufficient to sustain it, a verdict may be properly set aside and a new trial ordered, yet, that in every such case the trial court may, whenever it sees fit, direct a verdict and thus forever conclude the parties, has no basis in the law, which confides to juries and not to courts the determination of the facts in this class of cases. We think it cannot be correctly said in any case where the right of trial by jury exists and the evidence presents an actual issue of fact, that the court may properly direct a verdict. So long as a question of fact exists, it is for the jury and not for the court. If the evidence is insufficient, or if that which has l)een introduced is conclusively answered, so tliat, us a matter of law, no (juestion of credibility or issue of fact remains, then the question being one of law, it is the duty of tlw; court to determine it. lint whenever a plaintiff has estublishe'. Mumma v. Easton & A. R. Co., 73 N. J. L. 653, 658, 65 Atl. 208; Harvel v. Weldon Lumber Co., 154 N. C. 254, 262, 70 S. E. 389; Central Coal & Iron Co. i;. Owens, 142 Ky. 19, 21, 133 S. \V. 966; Powers v. St. Louis Transit Co., 202 Mo. 267, 100 S. W. 655; Miller v. Sovereign Camp, 140 Wis. 505, 507, 122 N. W. 1126; Galvin v. Brown & McCabc, 53 Ore. 598, 101 Pac. 671; Henry v. Omaha Packing Co., 81 Neb. 237, 115 N. VV. 777. " In the first instance, the court determines whether there is any evidence having a logical and reasonable tendency to prove the fact, or the inference in dispute. If not, it should not submit the question to the jury. Theobald v. Shepard, 75 N. H. 52, 55, 71 Atl. 26; Gavett v. Manchester A: L. R. Co., 16 Gray (Ma.ss.), 501. On the other hand, if reasonable iiicii might find the fact or draw the inference, the court must leave the determination to the jury. " The ('(jurt will judge the rea.sonableness of I lie inference claimed in the light of the evidence a.s weighed by its experience and knowledge of events, and if its conclusion be that there is no probability or presumption that would lead to this inference, it will exclude its consideration from the jury; if it conclude that there is such a probal)ility or i)resumption, or that reasonable men, reasoning logically, might reach several conclusions, of which the one claimed was one, it will leave its finding and con.sideralion to the jury. Doyle /'. Boston tt A. R. Co., 145 Ma.H.H. :m\, 3SH, 14 N. E. KH." And SCO Kefterman v. Dry Fork R. I{. Co.. 4S W. Va. COC, 37 S. 10. 6S3. Professor Wigmorc suggests lus a test, " whether the proponent's evidence is HO slight that a fuvcjrable verdict bascul ui)on that evidence alone would appear innoniprf'heriHiblo hh a matter of reasoning." Pocket Code of Evidence, sec. 2002; and see 4 Wigmorc, Evirlence, hcc. 2494. — Eu. WRIGHT V. SOUTHERN RAILWAY COMPANY 329 No question of law is involved. We have examined the record and find nothing in it to justify the claim of the defendant that the clause of the lease which provided that the flat should be thoroughly renovated had not been complied with. Affirmed} WRIGHT V. SOUTHERN RAILWAY COMPANY. Supreme Court of North Carolina. 1911. [Reported 155 North Carolina, 325.] This is an action to recover damages for personal injury, on the ground of negligence. . . . There was a judgment of non- suit, from which the plaintiff appealed. ^ Allen, J. It is true, as contended by the learned counsel for the plaintiff, that the defendant must plead contributory negli- gence, and that the plea is not good when it does no more than deny the negligence of the defendant and allege that the plaintiff was injured by his own negligence. Revisal, sec. 483; Cogdell y. R. R., 132 N. C. 855. The defendant, as appears from the answer, has done more than this, and we think it is entitled to avail itself of the defense. It has alleged that the plaintiff entered upon the track of the defend- ant without looking and listening, and that he recklessly attempted to cross the track in front of an approaching train. We also concur in the interesting and able discussion of the rela- tive functions of the judge and jury, and of the importance of pre- venting encroachment by one on the powers of the other, but we must recognize the principle, firmly established, that the judge must decide, as matter of law, the preliminary question whether there is any legal evidence to be submitted to the jury. In the determination of this question, caution should be observed and the construction of the evidence most favorable to the plaintiff should be adopted. Considering the evidence in this light, we must sustain the ruling of the judge, as it appears clear to us that the plaintiff was guilty of contributory negligence on his own evidence. There was much controversy at one time as to the right of the defendant to avail itself of the plea of contributory negligence on a motion to nonsuit, but it is now the accepted doctrine with us that » See Brown v. Drake, 109 Ga. 179, 34 S. E. 309; Angus v. Chicago Trust & Savings Bank, 170 111. 298, 48 N. E. 946. — Ed. * A part of the statement of facts in which the evidence is set out in detail is omitted. — Ed. 330 TRIAL it can do so if it is disclosed by the evidence of the plaintiff. If the plaintiff entered on the track witliout looking and listening, or if he looked and listened and attempted to drive in front of the train^ in either case he would be guilty of contributory negligence. He says that when he was sixteen or seventeen feet from the track, Hall, who was in the buggy with him, told him he heard another train, and jumped out and told him to whip up or he would be caught; that he turned and saw the train, two or three rail lengths from him, and that he whipped his mare to force him across. It is true he was not injured on the crossing, but he would not have been injured at all if he had not negligently placed himself in a position of danger. The citation of authority is needless, as there is no controversy between the plaintiff and the defendant as to wliat the law is, but as to its appUcation. Affirmed.^ CLARK V. OREGON SHORT LINE RAILROAD COMPANY, a Corporation. Supreme Court of Utah. 1899. [Reported 20 Utah, 401.] Baskin, J.^ This is an action in which the jilaintiff, who is the respondent, seeks to recover the value of a cow alleged to have been killed through the negligence of the appellant in running one of its freight trains. The answer denied the negligence of tlu; ajipellant alleged by plaintiff. Contributory negligence on the part of the plaintiff was not plead in the answer. At the dose of the testimony the appellant requested the trial court to instruct the jury to return a verdict in favor of defendant, of no cause of action. This request was denied, and the jury re- turned a verdict in favor of i)l:iintifT for SoO.OO. The only error assigned and urged b}' appellant is, that said re- quest was improperly refused. > See Neal v. Carolina C. R. R. Co., 126 N. C. 634, 36 S. E. 117, 49 L. R. A. 684. Tint HOC Whalcy v. Hurtlett, 42 S. C. 454, 20 S. E. 745. Compare American Exch. Nat. liank i;. N. Y. H. & P. Co., 148 N.Y. (JOS, 43 N. E. 168. A noriHuit hIiouIcI not fx; granted nor a vcnliot directed for ilio defendant where the plaintifT'H evidenee merely tends to diHciosc; a defense. liaker v. K. C, V. S. & M. R. R. Co., 122 Mo. 533, 2(5 S. W. 20; Uliyner v. City of MenfiHha, 07 Win. 523, 73 N. W. 41. — lOn. * 'I'hc Htat, hail any serious results. It is true that an effort was made by i)laintiff to show that the notice? was not poste(| until after the accident, but the evidence LONZER V. LEHIGH VALLEY RAILROAD COMPANY 333 could hardly be said to amount to a scintilla. A single witness, the engineer of a shifting engine, was called to this point in rebuttal, but his testimony cannot fairly be said to go further than that he did not see the notice until after the accident. It is further said that the testimony as to the posting of the no- tice and the deceased's knowledge of it was by witnesses for the defense and their credibility was for the jury. Such certainly is the general rule. The jury are not bound to believe every story that a witness or witnesses are willing to swear to simply because no other witness contradicts it. If its inherent improbability or irreconcilability with facts shown or admitted are such that it does not command their assent, the jury may disregard it. But this rule is founded on common sense and knowledge of human nature, and must be limited by the same standards. When the testimony is not in itself improbable, is not at variance with any proved or admitted facts, or with ordinary experience, and comes from wit- nesses whose candor there is no apparent ground for doubting, the jury is not at Uberty to indulge in a capricious disbelief. If they do so, it is the duty of the court to set the verdict aside. Such cases are exceptional, but this is one of them. The fact that the notice w^as there for three weeks in a place where it was the daily duty of the deceased to look, was not denied except inferentially by one witness; the coemployees of the deceased saw it, and when the fireman testified that the deceased had shown him a copy of it, he merely added positive testimony to what was already an irre- sistible inference from facts previously proved. The verdict should have been set aside as in direct disregard of the e\idence, and where that is the case, the court may refuse to submit it at all and direct a verdict accordingly: Holland v. Kindregan, 155 Pa. 156. On a review of the whole evidence the facts are practically un- disputed and from them it clearly appears that Lonzer's death was the direct and proximate result of his voluntary disregard of an order of the appellant made specially to avoid the very danger from which the accident resulted. Under such circumstances there could be no recovery by him or by anybody claiming through him. Judgment reversed.^ 1 Compare Union Pacific Ry. Co. v. McDonald, 152 U. S. 262, 38 L. ed. 434, 14 S. Ct. 619; Tedder v. Fraleigh-Lines-Smith Co., 55 Fla. 496, 46 So. 419; Marshall v. Grosse Clothing Co., 184 111. 421, 56 N. E. 807; Wellinp:ton v. Corinna, 104 Me. 252, 71 Atl. 8S9, holding that a verdict may be directed for the plaintiff although the defendant has interposed a negative plea. But see Commonwealth i-. McNeese, 156 Mass. 231, 30 N. E. 1021; Perkiomen R. R. Co. V. Kremer, 218 Pa. 641, 67 Atl. 913. — Ed. 334 TRIAL SHARE V. COATS. SuPREXTE Court of South Dakota. 1912. [Reported 29 South Dakota, 603.) Smith, J. . . . At the close of plaintiff's evidence, defendant moved for direction of a verdict, which was denied and exception taken. Defendant then rested, without offering any evidence, and, upon plaintiff's motion, a verdict was directed for plaintiff for the full amount of commissions claimed on both sales, to which defendant excepted.^ . . . The record shows that at a time when all the evidence offered was before the court and jury each jxirty presentetl a motion for direction of a verdict. It has been long settled in this state that when each party, at the close of all the evidence, presents a motion for direction of a verdict this, in effect, is a submission of ques- tions, both of law and fact, to the court. Bower v. Jones, 26 S. D. 414, 128 N. W. 470; First National Bank v. North, 2 S. D. 480, 51 N. W. 96; Erickson v. Citizens' Nat. Bank, 9 N. D. 81, 81 N. W. 46. The trial court has power, even in cases where a jury trial is a matter of legal right, to direct a verdict, when requested by both parties. People v. Scannell, 172 N. Y. 316, 65 N. E. 165. This rule is unquestionably sustained by the weight of authority. 38 Cyc. 1576 (c), and cases cited. Appellant's contention is that defendant's motion for direction of a verdict challenged only the legal sufficiency of the evidence to sustain a verdict for plaintiff, conceding the testimony of plaintiff's interested witness to be absolutely true; and that the credil)ility of i)lnintitT's testimony was not thereby submitted to the trial court, but remained a ques- tion upon which defendant was entitled to a verdict of the jury. ApjM'Uant's line of rea-soning has bccMi adojited in states whose courts have expressly disap])roved the New York rule. Thompson V. Brennan, 104 Wis. 564, 80 N. W. 947; National Cash Register Co. V. Bonneville, 119 Wis. 222, 0(5 N. W. 558; German Saving Bank v. Bates, 1 1 1 Iowa, 432, 82 N. W. 1005; Wolf v. Chicago Sign Printing Co., 233 111. 501, 8-4 N. E. 614, 13 Aim. Cas. ;^69; Staufif V. Bingenheimer, 94 Minn. 309, 102 N. W. (594; P()pj)itz v. German Ins. Co., 85 Minn. 1 18, 88 N. W, 438; Lonier v. Ann Arbor Savings Bank, 153 Mich. 253, 116 N. W. 1086. The rejusoning of these ca«<-*H wi Htateil in St:iulT v. Hiiigeiiheitiier, supra, is: That " a mo- • A part of tho opinidii is oiiiitlfd. 'Ilic judnnwnt of tlio trial court was rcveiTMHi for error in regunl to tlie uiiiuuiit of tlio verdict. — Ku. SHARE V. COATS 335 tion by either party to an action that a verdict be directed in his favor cannot be construed as a waiver of the right to have the facts passed upon by the jury, or as an agreement to submit them to the trial judge, in case the motion is denied." The reasoning upon which the New York rule is founded is that parties have the right to waive a jury trial; and that motions by both parties for direc- tion of a verdict is sufficient evidence of an intention to waive that right. The latter rule has been too long acted upon and settled in this state to warrant the adoption of the rule contended for by appellant. It has never been held in this state, however, that motions by both parties constitute 'a conclusive waiver of the right to de- mand a submission to the jury of questions of fact which maj' properly arise upon the evidence, where the contrary intention of the parties not to submit questions of fact to the court may be evidenced by a seasonable request that the facts be submitted to the jury. It is held in New York that a request for a submission of facts to the jury, where the evidence is of such character as to require it, may be made at any time before a directed verdict is returned by the jury. Eldredge v. Mathews, 93 App. Div. 356, 87 N. Y. Supp. 652; Maxwell v. JMartin, 130 App. Div. 80, 114 N. Y. Supp. 349; Fuller v. Schrenk, 58 App. Div. 222, 68 N. Y. Supp. 781, affirmed in 171 N. Y. 671, 64 N. E. 1126. It is also held that a request for submission of questions of fact to the jury should specifically pomt out the matters it is desired to have sub- mitted. Mayer v. Dean, 115 N. Y. 556, 22 N. E. 265, 5 L. R. A. 540. Such a request will not be granted after the rendition of the directed verdict. Persons v. Hawkins, 41 App. Div. 171, 58 N. Y. Supp. 831; Strohm v. Zoellner, 61 Misc. Rep. 56, 112 N. Y. Supp. 1063. The reason for the rule giving parties the right to submit questions of fact to the jury upon request, after an adverse ruling upon a motion for a directed verdict, is that every party is entitled to present to the court such legal questions as he thinks arise upon the testimony, without the penalty of losing his right to have the jury pass upon evidence which comes from interested witnesses, or is of such character that honest men might differ in the conclusions to be drawn therefrom. Otherwise, it is said, it would never be safe to ask for direction of a verdict. Switzer v. Norton, 3 App. Div. 173, 38 N. Y. Supp. 350. It is apparent, therefore, that a party, desirous of preserving his right to have the jury pass upon the evidence, where it is of such character as to be properly sub- mitted to a jury, may preserve that right by a reasonable and 336 TRIAL proper request, after the motions for directed verdicts have been ruled upon by the court. Such request would ortlinaril^y be a con- clusive rebuttal of the presumption that, by motions for directed verdicts, the parties intended to submit questions of both law and fact to the court. Under the rule adopted by this court, however, when no such request is made, the presumption that parties in- tended to submit to the court all questions, both of law and fact, becomes conclusive. An exc('j)tion to an order directing a verdict presents no ques- tion for review, except the legal sufficiency of the evidence to sustain the verdict directed. Questions of credibility of wtnesses, and of inferences to be drawn from evidence, are deemed submitted to the court by motions of both parties; and the directed verdict has like effect as does a verdict returned bj^ the jury. Sundling r. Willey, 19 S. D. 293, 103 N. W. 38, 9 Ann. Cas. 644; Farmen v. U. S. Express Co., 25 S. D. 96, 125 N. W. 575. In the case at bar, the defendant excepted to the order of the trial court directing a verdict for plaintiff; but this exception presents for review nothing except the legal sufficiency of the evidence to sustain the verdict, and cannot be deemed an exception to a denial of his request to go to the jury upon the evidence, for the plain reason that no such request was made. Ormes v. Dauchy, 82 N. Y. 443, 37 Am. Rep. 583.1 _ . GAGNON V. DANA d al Supreme Court of New Hampshire. 1897. [|{i|)<)rtcd 69 New Hampshire, 264.] Case, for personal injuries resulting from the fall of a staging at the Sacred Heart Hospital, in Manciiester, occasioned by the breaking of an unstjund and decayed bracket. \'erdict for the j)laintifT. TIk! plaintiff is a caq)('nt('r of many years' experi(Mice and fully umlcrstood all the dulics ami risks incident to that eini)loyment, one of which is the itiittiiig up of wail hrackcts to sujjport the staging on which he is to work. ' See uIho licuftc-11 v. Milton.-, l.-,7 I'. S. \'A, 'M L. vd. <).>!, 15 S. Ct. 566; liiiipire Stiito Cuttle (.'o. v. Atcliisoii, etc., Ky. Co., 210 U. S. 1, 52 L. od. 931, 2H S. Ct. 6()7, 15 Ann. Ciw. 70; liunkcT.s' Surety Co. i'. Williiiin Miller & S, Kl Atl. Kl 1. — Ku. GAGNON V. DANA 337 The work on the hospital was being done by one Bradley, the owner of the property, who employed one Gay to superintend the work, hire and pay the men, and buy the materials. In the per- formance of these duties, Gay went to the defendants and engaged St. Lawrence, their superintendent, and all the other men in their employ, one of whom was the plaintiff, under an arrangement by which the defendants were to receive the same wages the men were then receiving, and twenty-five cents a day additional for each man furnished by them; and the men went to work on the hospital accordingly. The defendants wore not employed on the building and had nothing to do with it aside from the letting of their men. By Gay's direction, St. Lawrence acted as foreman of all the men on the job, and kept their time and reported the same to Gay, who kept the pay-roll, paid the men directly hired by him, and also paid the defendants in a lump sum for the men furnished by them. Not having a sufficient number of wall brackets for stagings, Gay subsequently borrowed of the defendants about ninety of their brackets, which were used by the men on the job. These brackets were loaned to Gay gratuitously and merely as an ac- commodation to him; and the loan had nothing to do with the original contract of hiring the defendants' men. The staging on which the accident happened was built by the plaintiff and one Dana, a fellow-workman. It was about four- teen feet from the ground, and in front of a bay window. The brackets were placed on the building at each side of the window, and a plank about a foot wide, two inches thick, and fourteen feet long, made the staging. The plank touched the window, and was on the outside part of the bracket within six inches of the end of it. While Dana and the plaintiff were on the plank, one of the brackets broke at a point just outside the brace, and the plaintiff fell to the ground, stumied and seriously injured. He testified that the staging looked all right. Several witnesses for the plaintiff testified that they heard the defendant Dana say soon after the accident that he knew some of the brackets were old and unsound, and that he told St. Luav- rence to pick them out and not to use them. This was denied by Dana and by St. Lawrence; and Dana further testified that he knew of no unsoundness in the brackets when they were loaned. At the close of the plaintiff's evidence, a motion for a nonsuit was denied, subject to exception. At the close of all the evidence, 338 TRIAL the motion was renewed by the defendants, who also moved that a verdict be directed for them. The motions were denied, and the defendants excepted. . . . Blodgett, J.^ . . . The defendants can take nothing by their exceptions to the denial of their motions for a nonsuit and to direct a verdict in their favor. If at the time tiie plaintiff rested he had not adduced competent evidence to sustain a verdict in his favor (as to which no mtelligent opinion can be expressed without additional facts), it is now immaterial because the de- fendants, instead of risking their case upon their exception to the denial of their motion for a nonsuit, went on with the trial and introduced their evidence, and the deficiency, if any, of the plain- tiff's evidence was supplied by one side or the other before the case went to the jury% inasmuch as it is found that at some stage of the trial there was testimony from numerous witnesses to and against the defendants' knowledge of the bracket's defective and unsound condition; so that when all the proof was in the case, there was no ground of exception for the reason of its insufficiency to sustain a verdict for the plaintiff, and this being so, it is wholly indifferent by which party the proof was introduced. Fletcher v. Thompson, 55 N. H. 308, 309, and authorities cited; Oakes v. Thornton, 28 N. H. 44, 47 (per Woods, J.)- And this testimony also rendered the renewal of the motion at the close of the evi- dence unseasonable (Brown v. Insurance Co., 59 N. H. 298, 307), and precluded the granting of the motion to direct a verdict for the defendants. Shepardson v. Perkins, 58 N. H. 354, 355. The result is that the defentlants' exceptions on this branch of the case arc overruled, and their other exceptions hereinbefore considered sustained. Verdict set aside^ Clauk, J., did not sit: the others concurred. ' A part of the statement of facts and a part of tlio opinion are omitted. — Ed. » Weber v. K. C. Ch1<1c Ry. Co., 100 Mo. I'Jl, 12 S. W. SOI, KJ S. W. 587, 7 L. K. A. 819; liumham v. Concord R. R., 69 N. H. 280, 45 Atl. 5G3, accord. The court's refusal to direct a verdict for the defendant at the dose of the j)Iaintiff's evidence dcxjs not prcchide the direction of Kuch a verdict at the close of ull the evidence. Mon a trial the defendant may supply de- ficiencies in plaintifif's proof, and that in courts of record at least, the failure to renew or make a motion for a nonsuit at the close of all the evidence will be regarded as an admission that there is some question of fact to be passed upon and a waiver of the right to have the complaint and case dismissed as a matter of law. Jones v. Union Ry. Co., 18 App. Div. 2G7; Griffith v. Stat en Island R. T. R. R. Co., 89 Hun, 141; Hobson v. N. Y. Condensed Milk Co., 25 App. Div. Ill; Barrett v. Third Ave. R. R. Co., 45 N. Y. 628 These views lead to the conclusion that M-ithout consideration of its merits the judgment appealed from must be affirmed, with costs. ^ CuLLEN, Ch. J., Gray, Edward T. Bartlett and Haight, J J., concur; Willard Bartlett, J., concurs in result; Chase, J., not sitting. Judgment affirmed. YOUNG, Administratrix, v. CENTRAL RAILROAD COAIPANY OF NEW JERSEY. Supreme Court ok the United States. 1914. [Reported 232 United States, 602.] White, C. J. As administratrix of the estate of her deceased husband, the plaintiff in error sued to recover for the loss occa- sioned by his death alleged to have resulted from the negligence of the defendant railroad company. Over the objection of the de- fendant the case was submitted by the trial court to the jury and from the judgment entered on the verdict renden^d against the railroad cfMiipany, error was i)y the company j^rosccuted from the Circuit Court of Appeals. On the hearing that court concluding that the evidence did not justify the submission of the case to tlu; jur}', reversed the judgment and in passing upon a motion mad(^ by the railroad company in the trial court, j)ursiiaiit. to tiie Penn- > Columbia H. R. Co. v. Hiiwthoruc, 144 U. S. 202, 30 L. ed. 40.'i, 12 S. Ct. 691; Jolict, A. & N. Ry. Co. v. Velie, 140 111. 59, 29 N. K. 700; Barul.iwz v. Kulmt, 91 Md. f>3, 4(1 All. 3.17; Cohs v. CulkinH, 102 Mush. 492, 39 N. E. 4<)9; Hull V. Wiikffu'ld, etc., Ry. ('..., I7S Mjihh. 9S, .V.) N. K. OGS, arconl. Sec W'lgmnri;, Lvideruu!, nee. 2490. — IJ*. BOTHWELL V. BOSTON ELEVATED RAILWAY COMPANY 341 sylvania practice for judgment in its favor non obstante veredicto it was held that tlie motion was well taken and the case was remanded to the trial court not for a new trial, but with directions to enter a judgment for the defendant. (200 Fed. Rep. 359.) As a case as made by the pleadings depended not merely upon diverse citizen- ship, but was expressly based on the Employers' Liability Act, error was prosecuted from this court. We shall not undertake to analyze the evidence or review the grounds which led the court below to conclude that error was com- mitted in submitting the case to the jury, because we think it is adequate to say that after a careful examination of the record we see no reason for holding that the court below erred in so deciding. As regards however, the ruling on the motion for judgment non obstante veredicto, it is apparent in view of the recent decision in Slocum V. Insurance Company, 228 U. S. 364, that error was com- mitted. It follows that our duty is to affirm and modify; that is, to affirm the judgment of reversal and to modify by reversing so much of the action of the court below as directed the entry of a judgment in favor of the defendant. Conformably to this con- clusion it is ordered that the judgment of reversal be, and the same is hereby affirmed, and that the direction for entry of judgment in favor of defendant be reversed and the case is remanded to the trial court with directions to set aside its judgment and grant a new trial. Affirmed and modified. BOTHWELL, Administrator, v. BOSTON ELEVATED RAILWAY COMPANY. Supreme Judicial Court of Massachusetts. 1913. [Reported 215 Massachusetts, 467.] Tort under St. 1907, c. 392, for the death of WilUam J. Both- well, caused by his being run into by a car of the defendant on Washington Street in that part of Boston called RosHndale, and alleged to have been due to negligence of the motorman of the car. . . . The jury found for the plaintiff in the sum of $5,000; and the defendant alleged exceptions. RuGG, C.J ^ It is urged by the defendant that this is a proper * A part of the statement of facts is omitted together with a part of the opinion in which the evidence was examined and held to show contributory negHpence, and in which it was held that the defendant's request that a verdict be directed in his favor should have been granted. — Ed. 342 TRIAL case for this court to exercise the power vested in it by St. 1909, c. 236, and to direct by its rescript that judgment be entered for the defendant. The case appears to have been fully and fairly tried with an intelligent appreciation by counsel on each side of the issues involved and of the principles of law applicable to it, and its merits on the ample report of the evidence contained in the exceptions seem plain. Therefore it appears to be a case where the statute properly may be invoked. Archer v. Eldredge, 20-4 ]\Iass. 323, 327. Grebenstein v. Stone & Webster Engineering Corp., 205 Mass; 431, 440. Newhall v. Enterprise JMining Co., 205 Mass. 585. Burke v. Hodge, 211 Mass. 156, 163. This course would be followed without discussion but for the decision of Slocum v. New York Life Ins. Co., 228 U. S. 364, which holds that "the right of trial by jury " secured by art. 7 of the Amendments to the Constitution of the United States does not permit the entry, after a verdict in favor of one party, of a judg- ment for the opposing party under circumstances like those in the case at bar. The question there arose in reviewing the action of the Circuit Court of Appeals which, under the conformity act (U. S. Rev, Sts., § 914) and following a Pennsylvania statute, had entered judgment in favor of the party for whom the trial court erroneously refused to direct a verdict. The substance of that decision is that it is an unconstitutional exercise of the power of legislation to authorize the entry of judgment in a case where a trial by jury has been had, except in conformity to the verdict, and that, although the error committed by the trial court may consist solely in its refusal to direct a verdict in favor of one party, yet after a verdict wrongly rendered in favor of the adverse party as the direct result of such erroneous refusal, the only method for correcting that error within the reach of the legislative or judicial departments of government is to order a new trial, and this because of the scope of the meaning of " trial by jury," as secured by the Seventh AiiiciHliiicnt t(j the T'cdcral Constitution. That decision is not a final or binding authority on this court, for the rejison that tlie Seventh AnicrKlinciit docs not control the action of the several States in abridging trial by jury witiiin their own jurisdiction. It applies only to the courts and Congress of the United States. Pearson v. Yewdall, 05 U. S. 2<)1, 2!)(). Twiiiiiig v. New Jersey, 21 1 U. S. 78, 98. 'i'lie decision of Slocum r. New ^'(trk Life Lis. Co, was rendered by a bare majority of a dixided cnurt, four of the justiccH, among whom is a former chief justice of this court, joining in a disHenting o])inion. JUit the deferenc(» due to a decision by BOTHWELL V. BOSTON ELEVATED RAILWAY COMPANY 343 the highest court of the nation when it challenges the constitution- ality of our statute (as it does because our own constitution secures the right of trial by jury) renders necessary thorough consideration, even though our statute has been acted upon heretofore in numer- ous instances without question of its validity. The substance of our statute is that in civil cases where at the trial a request has been made that on all the evidence a finding or verdict be returned for either party, and such request has been denied and a finding or verdict has been rendered contrary thereto, and it shall be held by this court on exceptions that such request should have been granted, then (if all exceptions by the prevailing party shall be overruled) this court may by rescript direct the entry in the trial court of judgment for the party in whose behalf the request for the finding or verdict was made and erroneously refused. Before the statute of 1909 no such power resided in any of our courts. The practice is stated with clearness in Smith v. Lincoln, 198 Mass. 388, where it was held that after a verdict the only power of the trial judge was to set aside the verdict. The aim of the act is plain both from its provisions and its title, " To provide for expediting the final determination of causes." However laud- able the design for preventing delays in the administration of jus- tice, it can be exercised only in accordance with the limitations imposed by the constitution. Article 15 of the Declaration of Rights of our Constitution provides: " In all controversies con- cerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practised, the parties have a right to a trial by jury; and this method of procedure shall be held sacred, unless, in causes arising on the high seas, and such as relate to mariners' wages, the Legis- lature shall hereafter find it necessary to alter it." This article has been discussed in numerous cases. It has been held that the Legislature may regulate the mode in which the right shall be exercised and that such regulation does not impair the substance of the right. This rule has been applied to statutes requiring as a condition precedent to the trial an affidavit of defense. Hunt v. Lucas, 99 Mass. 404; the filing of a claim for a trial by jury in order to prevent waiver of the right, Foster v. Morse, 132 Mass. 354; appeal from decision of tribunal without a jury, Kennej^'s case, 108 Mass. 492; the giving of bail and security for costs on appeal from trial before a magistrate, Jones v. Robbins, 8 Gray, 329, 341, Hap- good V. Doherty, 8 Gray, 373; and to statutes changing the rule as to challenges of jurors, Commonwealth v. Dorsey, 103 Mass. 344 TRIAL 412; the qualifications of jurors, Commonwealth v. Wong Chung, 186 Mass. 231, Commonwealth v. Worcester, 3 Pick. 462, and the weight to be given to evidence, Holmes v. Hunt, 122 ]\Iass. 505, 516; and restricting the right of the trial judge to set aside a ver- dict to cases where motion therefor is made and to reasons stated, Peirson v. Boston Elevated Railway, 191 Mass. 223, 229, Loveland V. Rand, 200 Mass. 142, James v. Boston Elevated Railway, 213 Mass. 424. See Commonwealth v. Barry, 9 Allen, 276. On the other hand it has been said that trial by jury implies power of the judge to set aside a verdict and grant a new trial, which cannot be impaired by the Legislature. Opinion of the Justices, 207 Mass. 606. Capital Traction Co. v. Hof, 174 U.S. 1. None of these cases are decisive of the point now presented. It becomes necessary to consider the nature of the trial by jury se- cured by our Constitution. There was great diversity in the form of jury trial existing in the several States at the time of the adop- tion of the Constitution of the United States. This is discussed ^vith fecundity of illustration by Hamilton in No, 83 of the Federal- ist. Plurality of jury trials in Massachusetts in the same case there is referred to. Indeed, this variety of custom between the States has been said to have been the reason why no article secur- ing trial by jury in civil cases was inserted in the Constitution by the convention which framed it. 5 Elliot's Debates, 550. The trial by jury preserved by our Constitution is the common law trial by jury in its essc^ntial characteristics as known and un(l(T- stood at the time the Constitution was adoj^ted. Ctjinmonwcalth V. Anthes, 5 Gray, 185, 229. It did not mean to preserve the minor details or unessential formalities of tlie trial by jury as it then existed either in J-Jiglaiid or here. That is i)lain both on reiuson and authority. Trial by jury in some form had existed since the early settlement of this Slate. Modifications of the system as practised in the mother country had grown up by custom and by legislation in t he ( 'olony and I'lovint t» of Massachuset ts Hay. It is n<»t to be thought t liat th(! frainers of our Constitution in 1780, [)erf(;rniing their labors in the midst of the \\ ar of th(> Hevoiution, had in mintl the system of the mother eountry rather than that with which they were fainihar l»y daily ol»ser\ation. As we under- stand, the substance of trial by jury in l-lngland and in Massachu- Hetts was the same althter|, if seems to US not open to debate that the trial BOTHWELL V. BOSTON ELEVATED RAILWAY COMPANY 345 by jury known and practised in this State at the time the Constitu- tion was framed and adopted was tiie one meant by art. 15 of our Declaration of Rights. It was pointed out with ample reference to the statutes by Mr. Justice Story in United States v. Wonson, 1 Gall. 5, that both in the colonial and provincial periods of the history of our Commonwealth two trials by jury upon the same issues in the same case often were permissible as of right, one in the court of first instance and one in the appellate court. This con- tinued to be the law until after the ratification of the Federal Con- stitution. St. 1782, c. 11, §§ 2, 5; c. 14, § 3. St. 1784, c. 28, § 8. It has never been suggested, so far as we are aware, that this double jury trial was one of the incidents of the constitutional right of our citizens. Under our practice trial by jury in its constitutional sense does not include all the features which attach to the right in England. This is pointed out in Sinmions v. Fish, 210 Mass. 563, 569, where one difference touching the scope of a new trial is dis- cussed. Our cases there are reviewed at length and it is shown that a new trial in this State (contrary to the established law of England) has been construed not to require a new trial of all the issues raised by the pleadings when in law and in the exercise of sound sense it appears that the issue as to which alone error was committed in the trial is wholly separable from those as to which a full and fair trial in law was had and may with entire justice and a jealous regard to the rights of all parties, both in their strictly legal aspects and in the practical phases likely to arise in a jury trial, be submitted as a separate and distinct matter to be deter- mined by anew jury. This power is exercised with caution. But its existence does not impair in any of its essential features the right of trial by jury which the Constitution commands to be held sacred. See Randall v. Peerless Motor Car Co., 212 Mass. 352, 392; 25 Ann. Cas. 588, and cases collected. It was a part of common-law trial by jury that the plaintiff might become nonsuited as of right at any time before verdict if not before judgment. Dorick v. Taylor, 171 Mass. 444, and cases there collected. 2 Tidd's Pract. 867. Haskell v. Whitney, 12 Mass. 47, and cases cited in note at p. 49. But as early as 1820 it was decided that in this Commonwealth apparently as a practice long existing a plaintiff had no such right after the case was opened to the jury. Locke v. Wood, 16 Mass. 317. See Carpenter & Sons Co. V. New York, New Haven, & Hartford Railroad, 184 ]\Iass. 98. It is pointed out both in the opinion and in tiie dissent in Slocum V. New York Life Ins. Co., 228 U. S. 364, that there is no novelty 346 TRIAL in a judgment being given at common hnv without a verdict by a jury for that was aci-oniphslied ])y a demurrer to evidence. Cope- land V. New England Ins. Co., 22 Pick. 135. It is stated that our statutes make simpler provision for reaching the result available by that common-law method. Golden v. Knowles, 120 ]Ma.ss. 33G. There are other similar instances. It is laid down in 2 Tidd's Pract. 900 (a work of undoubted authority as to common law) as a principle of jury practice at common law that *' It sometimes happens that a point is reserved, or saved by the judge at 7iisi priiis, with liberty to apply to the court for a nonsuit or verdict; in which case, the court has been in the habit of considering it.self in the situation of the judge, at the time of the objection raised; and a nonsuit or verdict is entered according to their determination, without subjecting the parties to the delay and expense of a new trial." Numerous cases there are cited wiiere such practice has been adopted, the following being the most pertinent: Cox v. Kitchin, 1 B. & P. 338; Attw^ood v. Small, 1 Man. & Ry. 246, 261 (a); Mead v. Robinson, Barnes's Notes, 451; Kemp v. The Hun- dred of Strafford, Barnes's Notes, 455. Judgment appears not infrequently to have been entered by order of the appellate court upon special case stated. See for example Wright v. Cartw-right, 1 Burr. 282; Atkin v. Barwick, 1 Strange, 165; Coppendale v. Bridgen, 2 Burr. 814. This practice seems to have been followed in New York in some instances. Holmes v. D'Camp, 1 Johns. 34; Hatten v. Speyer, 1 Johns. 37; and perhaps rested in many in- stances on consent. 2 Tidd's Pract. 898. This is akin to our practice on a case stated. Massachusetts National Bank v. Bul- lock, 120 Ma.ss. 86. A somewhat analogous practice is described at length in Treacher V. Hinton, 4 B. court to diHcharg<' thr; jury arwl enter the judgment. The substance is the same when the jury find a verdict by the peremptory direction of the court. It is jtroper that the verdict, as in this ca.se, should show (»n its face that it is made imder the order of the court, for this relieves tho jurv of all reHponsil)ilitv for it." -Et>. SODOUSKY V. McGEE 349 Section VII. Argument and Conduct of Counsel. SODOUSKY, etc. v. McGEE. Court of Appeals of Kentucky. 1830. [Reported 4 J. J. Marshall, 267.] Robertson, C. J.^ The appellants (nine in number) have assigned various errors in a judgment obtained against them, for $100, by the appellee, in a joint action of assault and battery, instituted against them and four others. Two of the appellants pleaded justification severally. Some of them pleaded not guilty, jointly, and some not guilty, severally. Several counsel were engaged in the defense, some of them representing several of the defendants to the action jointly, and some appearing for other defendants severally and alone. . . . Jacob Sodousky, who had filed a separate plea of not guilty, ex- pressed a wish to be heard before the jury by his counsel; but he was not allowed to be thus heard, because " there were two other attorneys permitted to argue the cause before the jury, who were employed by his co-defendants, but who were not employed by him (said Jacob)." . . . The circuit court did not err in not permitting Jacob Sodousky to be heard by his counsel. It does not appear that any other counsel who was heard, represented him, nor that his counsel, who repre- sented others also, was heard in behalf of those others; if he had been, there could be no ground for complaint, because he was not entitled to more than one speech, merely because he appeared for several defendants. ,Every person has a legal, as well as a natural right to be heard in his own cause; and no rule of practice can deprive him of that right, if, at a proper time, and in a proper manner, he proposes to exercise it. It is a rule of practice in the courts of this state, to permit two, and only two counsel to speak on each side in civil cases; this is sufficiently liberal. The number might be reduced to one, and there could be no just complaint; all that a party can demand is, that he shall be heard by himself, or by his counsel. He cannot claim the right to be heard by a multitude of counsel, or by more than one representative. And if there be a plurality of co-plaintiffs, as their right or cause of action is joint, and they ^ A part of the opinion is omitted. — Ed. 350 TRIAL voluntarily unite in bringing suit, they must be considered as one person, and cannot, therefore, individually, demand as a matter of right to be heard l>y more than one counsel. But a plaintifif may sue whom he wills to sue. He may bring a joint suit against several, against some of whom he has no cause of action. They have not voluntarily united themselves in the action. They may be alien and hostile to each other; their interests may be diverse anil repugnant to each other; some may combine to escape, and to throw the Ijurden on the others. Some may, therefore, employ counsel in whom others have no confidence, and therefore, will not employ, and who may be paid to oppose the rights of those others. Suppose three defendants in an action of trespass employ, severally, three counsel; each defendant being hostile to the defense of his co-defendants, and the counsel of each being, of course, opposed to the right of those on whom he was employed to endeavor to throw the burden of the action. After two of the defendants had been heard by their counsel, should the other be disfranchised and com- pelled to be " dumb " " like the sheep before the shearers ? " Surely he would have a clear and undeniable right to be heard. The court has no right, in such a case, to restrict the number of counsel to two. The parties might consent that some two of their several counsel should alone argue the cause for all, and should, perhaps, be admonished to do so, if it appear to be reasonable and just. But when their separate rights exist, they cannot l)e com- pelled to waive, or to consolidate them. If two of the three should jointly employ two or more counsel, then the court might prevent any difficulty or confusion, l;y refusing (as it should do) to permit more than one of the joint counsel to speak. Nor would we admit, that if the court should clearly perceive that several coun.sol had been separately employed l)y several defendants in a joint action, merely for purposes of unjust advantage, when, in fact, the counsel of one is sui)stantially the counsel of all, and wh(>n he argues for all, there would ix' no power to compel them to consolidate the arguments, and to select for tlicnisclvcs, and among llicinsclves, some two counsel to argue the entire cause in the defense. The court should po.s.sess the right to prevent any abuse by litigants of their rights in court, or any perversion of them to vexatious or unjust ends. But when; it can be s.at isf:ictorily shown that one of several joint defendants is not identified in the defense with his co-dcfend.ants, and not only has disagreed with them in the emplo>inent of coun.sel, but has not been ai;irt eacliment or attemptetl impeadmient of the plaintiff has entirely failed; it has not affected his credit." Church, Ch. J. Two witnesses gave evidence tending to show tliat the plaintiff's general character was ])ad. This evidence though not ver>' strong, was legitimate upon that question. The judge cliarged the jury, " that the impeachment, or attempted impeach- ment of the plaintiff, has entirely failed; it has not affected his credit," etc., wiiich was specihcally excepteil to. I can sec no sufficient answer to the point that this was error. The evidence was competent, and whether strong or weak, should have been submitted to the jury for their con.sideration, ui)on the credibility of the witness. Three an.swers have l)een suggested: First, that other portions of the cliarge neutralized the effi'ct of this clause. It is true that the learned judge told the jury that tlie crediliility of the witness was a question for tlicm, but ue IhinU the fair con- struction of all lie said about it was to instruct llieiii that, in ])assing upon the credibility of the wilniss IIkv must exclude from con- ALLIS V. LEONARD 361 sideration the element of general bad character, sought to be proved by the two witnesses called, and the jury must have so understood it. Second, it is said that, at most, it was but an expression of opinion or commentary upon the facts which is not the subject of a legal exception. This is not tenable. It was more than an opinion or commentary; it was a decision or instruction that the evidence adduced was not sufficient to be considered by them, that it was a failure, and did not affect the credit of the witness. This was an instruction in the form and substance of law. There are cases holding that a mere opinion or commentary upon the facts is not the subject of an exception, but in such cases it is held that the judge must accompany such commentary with explicit instructions that it is the duty of the jury, notwithstanding, to consider the evidence and decide as they think the truth requires. (19 Wend. 186; 42 Barb. 326.) To be free from legal objection it must be advisory merely, and must not be put in the form of a direction as matter of law. (21 Wend. 509-525.) The jury is the constitutional tribunal for the determination of questions of fact; and I am persuaded that justice is better administered when courts refrain altogether from any interference with its rightful province. Jurors cannot distinguish between a direction in a mat- ter of law or fact. They are bound to take the law from the court; and a positive direction from the bench, as to a question of fact, is as potent as if it pertained to a question of law; and even an expression of opinion calculated to influence the decision of the jury in a matter clearly -within their cognizance, should be critically scrutinized. In this case the direction was unqualified, as we construe the charge. Third, it is claimed that the exception is not available, because no request was made to submit the question to the jury. The rule invoked does not apply. There was no neces- sity for a request; the court had made a distinct ruling that the attempted impeachment was a failure, which as we have seen was error, and the defendant excepted. This was all that was neces- sary to protect the defendant's rights. We cannot of course speculate as to whether this error had any effect upon the result or not. We are not permitted to consider that question. The error is one which cannot be overlooked without establishing a dangerous precedent. The judgment must be reversed, and a new trial ordered, costs to abide the event. All concur. Judgment reversed. 362 TRIAL COIMMONWEALTH v. BARRY. Supreme Judicial Court of Massachusetts. 1864. [Reported 9 Allen, 276.] INDICT^^ENT for keeping and maintaining a tenement in School Street in Boston, used for the illegal sale and illegal keeping for sale of intoxicating liquors. At the trial in the superior court, before Vose, J., all the wit- nesses were policemen, two of them being officers whose tlaily beat included School Street. The defendant's counsel, in his argmnent to the jury, commented with some severity upon their testimony, as the testimony of policemen. The judge in his charge told the jur>' that the same rules were applicable to policemen as to all other witnesses, in detemiining the credit to be given to their testimony; that in very numy of the cases which had been tried at the present term of the court poUcemen had been the principal witnesses, and he thought the jury would agree with him in the opinion that in all these cases they had manifested great intelli- gence, and testified with apparent candor and impartiality. The jur>'^ returned a verdict of guilty, and the defendant alleged exceptions. BiGELOW, C. J. Upon mature consideration we have come to the conclusion that we cannot give our simction to the instructions under which this case was submitted to the jurj\ Mewetl in either of the two aspects of which they are susceptible, it appears to us that they cannot be supported, consistently with the rules of law. If they are to be regarded only as an expression of opinion by the court concerning the cretlibility of certain witnesses who had testified in other ca.ses than the one on trial, they were clearly of a nature to mislead the jury. The implication from the language of the court is direct and positive, that the jur>' might projx'rly infer that the witness(;s in support of this prosecution were entitled to credit for the rea-son that other persons engaged in the same occupa- tion had testified with candor and impartiality in the trial of other caaas. The objection to this instruction is twofold. In the first place, it authorized the jury to draw an inference which was not a legitimate deduction from the premises. It by no means follows naturally or logically that witnesses employed in the same or similar occupations will testify on all occasions with cciual fairness COMMONWEALTH V. BARRY 363 and impartiality. In the next place, the instructions gave the jury to understand that they might travel beyond the case as proved before them, to seek for corroboration and support of the testimony adduced in behalf of the prosecution in facts which not only were not proved but which could not have been properly offered in evidence by the government. Nor is this the whole extent of the objection. The facts thus introduced into the case were submitted to the jury with a distinct expression of opinion by the court as to the effect to be given to them, at a stage of the trial when the defendant could not controvert them, and without any opportunity being given to his counsel to address the jury on the weight which was due to them. Such a course of proceeding is certainly unusual, and, as we think, does not accord with the due and orderly conduct of a criminal trial. But in another aspect it seems to us that the instructions were objectionable. The credibility of the witnesses who had testified in support of the charge in the indictment was a fact which it was the exclusive province of the jury to determine. As essentially affecting their bias, and the credit to be given to their testimony, their occupation and connection with the origin of the prosecution against the defendant might be important elements, and, within proper limits, proper subjects of comment by counsel, and of consid- eration by the jury. If the instructions are to be construed, as we think they fairly may be, as the expression of the opinion of the court on the degree of credit to which these witnesses were entitled, the court exceeded its authority in stating such opinion to the jury. By Gen. Sts. c. 172, § 15, the duty of charging the jury in criminal eases is specially enjoined upon the court. By Gen. Sts. c. 115, § 5,^ which is apphcable alike to civil and criminal trials, the rule is prescribed by which courts are to be guided in the performance of this duty. It must be admitted that this provision of the statute is not expressed in terms which are free from ambiguity. But although there is a seeming repugnancy in the two branches of the section, we think that they are susceptible of a reasonable inter- pretation, which will give full force and effect to both of them, and at the same time carry out what seems to have been the manifest purpose of the legislature. It is clear beyond controversy, that the first clause contains a distinct and absolute prohibition, that the " courts shall not charge juries with respect to matters of fact." ' This statute is as follows: "The courts shall not charge juries with respect to matters of fact, but may state the testimony and the law." 364 TRIAL To reconcile this with the clause that follows, which provides that the courts " may state the testimony and the law," the prohibition nmst be regarded as a restraint only on the expression of an opinion by the court on the question whether a particular fact or series of facts involved in the issue of a case is or is not established by the evidence. In other words, it is to be construed so as to prevent courts from interfering with the province of juries by any state- ment of their own judgment or conclusion upon matters of fact. This construction effectually accomplishes the great object of guarding against any bias or undue influence which might be createtl in the minds of jurors, if the weight of the opinion of the court should be permittetl to be thrown into the scale in docidmg upon issues of fact. But further than this the legislature did not intend to go. The statute was not designed to deprive the court of all power to deal with the facts proved. On the contrary, the last clause of the section very clearly contemplates that the duty of the court may not be fully discharged by a mere statement of the law. By providing that the court may also state the testi- mony, the manifest purpose of the legislature was to recognize and affirm the power and authority of the court, to be exercised accord- ing to its discretion, to sum up the evidence, to state its legal effect and bearing on the issues, and to indicate its proper application under the rules of law. In the case at bar, the court exceeded the limit prescribed by the statute. If the language used by the court was intended to be applicable to the witnesses who had testiiictl in behalf of the jiros- ecution, it was an expression of oi)ini<)u as to their credibility. As this was a matter of fact, within the cxclusixc ])ri)\ince of the jury to determine, such exi)ressic)n of oijinion went b(>yond a " .statement of the testimony," and trenched on prohibited ground, being a ('hargc to t he jury " with respect to matters of fact." We have already said tiiat the occupation of a witness, in con- nection with other facts, may have a material i)earing t)n the credibility of his testimony in a particular cas(\ Hut we feel l)ound to add that we do not intend to express an o])inion on the (juestion whether in the case at bar there was any \alid groinul for calling in (|uestion the veracitN' or candor of the witnesses whom the defendant's counsel sought to impeach. \o such point seems to have been raised at the trial, nor are the facts bearing U|)on it stated in the exceptions. The inference from the course of the trial, especially from the line of argument which the counsel for the defendant was pcrmitte- may have the facts before them, under such instructions as to the law as are material to the case; and as under our system of judicature those instruc- tions can be given only by the court, it would seem to be the client's absolute right to have his counsel heard concerning them. In no other way can the suitor have the benefit of the machinery' of the courts; of the law as claimed by him if the response is favorable, of an exception for review if it is refused. The right may be for- feited by the omission of counsel to speak in time, for the client is bound l)y his conduct, and as to that the court has a large discre- tion. Here it was not exercised. The jury were before the court, in their proper places. Its ear was withheld from the counsel, not because he ilid not speak in season, but because, anticipating the object of counsel, the court decided to deny him. It may be that no suggestion would have changed that mind; liut had it been heard, the defendant would have had either the benefit of an excep- tion to that decision, or a ruling of the court in accordance with his views. To one or the other he was entitled; and it wa.s beyond the power of the court to deprive him of it. As a trial judge is bound to instruct the jury on each proposition of law submitted to him by counsel bearing upon the evidence (Zabriskie v. Smith, 13 N. Y. 322; Foster v. People, 50 id. GOl), so it nmst l)e a legal right of counsel to submit such propositions (Pennock v. Dialogue, 2 Peters, 15), and its denial by the court a subject of exception and review upon appeal. The judge, therefore, erred in refusing the request of counsel, and the error is fatal to the judgment, unless it appears that there was no (juestion in the case to l)e sulmiitted to the jury (People V. Gray, 5 Wend. 289); or that the re(iuest came too late. Neither f;i(t exists. The case was submitted to tiie juiT as one for their detenninution, and the recjuest was made before they left their seats, and before, so far as the record siiows, any other step had Ijeen taken. That one was to be taken, /. c, that the jury were ab(jut to retire, is not suflicieiit. There is noliiing to show tliat counsel did not seek the a1 lent ion (»f the court as soon as possible after the close of I hr chaigr, and it apjx'ais afhnnatively that he did so before they retired, 'i'liis \\as snUicient. State v. Catlin, :i Vt. FM), 'M. I have reached this conclusion with reluctance, and \\itii no disposition to interfere witli the exercise of the large and necessary di.scretion intrusted to a trial judge. But a riglit vulunbU! to CHAPMAN V. MCCORMICK 367 litigants seems to have been denied; and for this reason there should, I think, be a new trial. Miller, J. (dissenting). . . . An exception is also taken to the decision of the judge upon the trial in regard to the requests to charge made by the counsel for the defendant. At the time when the requests were presented, the jury had been charged, risen from their seats, and were about to retire in charge of an officer to deliberate upon the verdict, and the judge declined to make any further charge, and directed the jury to retire. The orderly proceedings of a court upon a trial rest very much in the discretion of the presiding judge, and unless it appears that such discretion has been abused, it is not within the province of an appellate tribunal to interfere with its exercise. The usual course upon a trial is to hand up the requests to the judge before the charge is made, and at most, prior to the time when the jury are ready to retire in charge of an officer. A proper degree of vigilance would certainly require that the right to present requests should be exercised before the latter contingency, and a delay beyond this ordinarily would leave it for the judge to say whether he would keep or call the jury back and pass upon the requests. It should not be overlooked, that it does not appear that any portion of the charge as made was excepted to, nor what additional charge was desired, or that it would affect the disposition of the case in any manner. The counsel stated that he desired the judge to make " some charge to the jury," and to charge in some respects without advising what he desired, or showing that it was material. Nor did he state what he did desire in this respect, as he should have done under the circumstances presented. We are not prepared to say that any injustice has been done, or that there was any such abuse of discretion as would authorize an interference with the decision of the judge by a reversal of the judgment. Rapallo, Andrews, Earl and Finch, JJ., concur with Dan- FORTH, J. Folger, Ch. J., concurs with Miller, J., dissenting. Judgment reversed. 368 TRIAL STUCKEY V. FRITSCHE. Supreme Court of Wisconsin. 1890. [Reported 77 Wisconsin, 329.] Taylor, J.' . After tiie counsel had argued the.case to the jury, the learned circuit judge gave no charge or instructions to the jury, but made the following remark: " I have no charge to give you, gentlemen. Conduct the jurj- to their room." No excep- tion was taken at the time by the learned counsel for the defendant to the declination of the learned judge to instruct the jury ; neither did he rwjuest the jutlge to instruct them generally, nor request that any specific instruction should be given to them. On making a motion for a new trial, the learned counsel for the defendant assigns this as a reason for granting the siune, in the following language, as his ninth reason: " The court erred in not instructing the jury in the law applicaljle to the case." The learned counsel for the appellant claims that it is the duty of the trial judge to instruct the jury in every case upon the law of the case, whether requested to do so or not; and he cites sec. 2853, S. & B. Aim. Stats.,- as imposing such duty upon the trial judge. We are clearly of the opinion that this section was enacted for the purpose of requiring the instructions, when given, to be given in uritifuj, unless the giving of them m writhig was waived b)' the parties, and was not enacted for the purjwse of making it the duty of the trial judge to instruct the jury in any and every case. This was so held by this court in Hejiler v. State, 58 Wis. 46, 49. The same rule is adopted in New York. Haupt v. Pohlmaim, 1 Rob. (N. Y.), 121 ; Graser v. Stelhvagen, 25 N. Y. 315. It was also held that an exception for a refu.sal to instruct the jury us retiuested by the coun- sel mu.st be taken on the trial in order to be available to the party coiiiplaining of such refusid. ]\Iur|)hy v. Martin, 58 Wis. 276; Collins t'. Shamion, 67 \Vi.s. 441; Firmeis v. State, 61 Wis. 140; Adams v. McKay, 63 Wis. 404, 408; Gardner v. Gooch, 48 Me. ' A part of the opinion is :i, S. & H. Ann. Slnt.s., provides: " lIf)on the trial of every artion, the jud^e pn-siditiK hIihII, Ix-forc j^ivin^ tlic .sniiic to the jury, reiluee to writing iinrj n\v(' lui written hi.s cliarne and instruction.s to the jury, und all further and I)arlirMjliir inHtnK'tion.s ^iven them when they nhall return after having;: once retired to deliherate, unh-Rs ii writt«'n charge l)e waived \>y coun.sel at the com- rneneeinent of the trial; and except that the chiirne or instructions may be dehverey the olhciiil plidnoj^rapluc reporter of the court. . . ." — Hei'. CHICAGO CITY RAILWAY COMPANY V. MAGER 369 487. We think it very clear that the defendant waived any right to insist upon the trial judge instructing the jury, by not taking exception to his declining to give instructions. Had he desired the judge to instruct the jury, he should have either made a general request that the judge instruct the jury upon the law of the case, or have offered specific instructions and requested the judge to give the same to the jury. Having done neither in this case, he must be deemed to have assented to submitting the case to the jury without instructions. By the Court. — The judgment of the circuit court is affirmed.^ THE CHICAGO CITY RAILWAY COMPANY v. MAGER. Supreme Court of Illinois. 1900. [Reported 185 Illinois, 336.] BoGGS, J. 2 The only alleged errors here urged are, that on the , hearing of this cause, which was an action on the case by appellee to recover damages for personal injuries alleged to have been inflicted through actionable negligence on the part of the appellant company, the trial judge erroneously refused to give to the jury instruction No. 23 asked by appellant, and so erroneously framed an instruction given by the court on its own motion as to authorize the rendition of a verdict against the appellant company on a ground of negligence not advanced by the declaration. Instruc- tion No. 23 was a follows: " The jury are instructed that in considering the evidence of the witnesses in this case and determining what weight shall be attached to the same, they have the right to take into consideration whatever interest, if any appears from the evidence, such witness or witnesses may have in the result of the suit." 1 In NeviUe v. Fine Art & Gen. Ins. Co., [18971 A. C. 68, p. 76, Halsburj-, L. C, said: " Where you are complaining of non-direction of the judge, or that he did not leave a question to the jury, if you had an opportunity of asking him to do it and you abstained from asking for it, no Court would ever have granted you a new trial; for the obvious reason that if you thought you had got enough you were not allowed to stand aside and let all the expense be incurred and a new trial ordered simply because of your own neglect." See also Express Company v. Kountze Brothers, 8 Wall. (U. S.), 342, 19 L. ed. 45. — Ed. 2 A part of the opinion is omitted. — Ed. 370 TRIAL Instruction No. 16 given at the request of the appellant company was as follows: " The jurj' are instructed that while the law pennits a plamtiff in a case to testify in his o"^\ti behalf, nevertheless the jurj' have a right, in weighing his evidence and detennining how much cre- dence is to be given to it, to take into consiileration that he is the plaintiff and his interest in the result of the suit." Each of these instructions asked the court to direct the atten- tion of the jun>' to the same class of witnesses, namely, those having an interest in the result of the suit. Mr. Greenleaf, in his work on Evidence, (vol. 1, sec. 386,) defines an mterest in the result of a suit to be " some legal, certain and immetliate interest, however minute, either in the event of the cause itself, or in the record, as an instrument of evidence, in support of his oami claims, in a sub- sequent action. It must be a legal interest, as distinguished from the prejudice or bias resulting from friendship or hatred, or from consanguinity, or any other domestic or social or any official rela- tion, or any other motives Ijy which men are generally influenced, for these go only to the credibility." It is not claimed any one who gave testimony, other than the ai^pellee, had any such an interest in the result of the suit. The court was therefore justified in refusing instruction No. 23 as being but a repetition of instruction No. 16. Counsel for the appellant company asked twenty-six instructions, twenty-one of which were granted. It was the province and duty of the court to decline to give a second instruc- tion on the same point. If counsel for appellant desired the jury should be advised it was competent for them, in determining as to the weight and value proper to be given to the testimony of witnesses, to consider any bias or prejudice existing in the mind of the witness, arising from sentiments of friendship or hatred, if any such Ijias or luitrcd nppearetl, an instruction should have been so franuMJ for lluit jxirposc . . . Judgment affirmed} ' In II fi'w statfis requested instructions must he viwvn or refused in the exact larjKuan(! ul the request. See Eiust Tenn., Va. & Ga. R. R. Co. «^. Bay- liss, 77 Ala. 42'J. — Ed. COBB CHOCOLATE COMPANY V. KNUDSON 371 THE COBB CHOCOLATE COMPANY v. KNUDSON. Supreme Court of Illinois. 1904. [Reported 207 Illinois, 452.] Ricks, J,^ . . . After the jury were empaneled, and before the first witness was sworn, the court entered an order limiting the num- ber of instructions to be given to thirty, — fifteen for plaintiff and fifteen for defendant, — and that no instructions in excess of that number would be examined or received by the court. Appellant insists that such order was reversible error. In the case of Chicago City Railway Co. v. Sandusky, 198 111. 400, an order substantially the same was entered, and while the court there deprecated the giving of a useless number of instructions, as is so often done, yet it was declared that it was not proper to lay do^vn a hard and fast rule stating the number of instructions that should be given in a case, it being stated that many times a larger number of short, concise instructions were preferable to a limited number of long, diffuse and complicated instructions. In that case the number of instructions was limited to twelve on a side and the appellant had introduced twenty in excess of that number, but in its argu- ment only dwelt upon the injury alleged to have been sustained by the refusal of one of the twenty instructions not received, and the court being of the opinion that the substance of that instruction was contained in an instruction that was given for the appellee, refused to reverse the case. So in the case at bar, upon an examination of the instructions not received, three in number, we find that the substance of each of them was contained in instructions given. The witnesses in this case were few in number and the issues simple, so appellant was not unduly hampered by being allowed but fifteen instructions. Nor do counsel for appellant, in their contention, point out wherein they were unable, in such number of instruc- tions, to cover the points involved, nor have they shown wherein their cause was prejudiced by such restriction, and we do not see how it could have been, and regarded the contention as not well taken. . . . Judgment affirmed. ^ A part of the opinion only is given. — Ed. 372 TRIAL STRUEBING v. STEVENSON. Supreme Court of Iowa. 1905. [Reported 129 Iowa, 25.] Weaver, J.' On March 26, 1902, the defendant sold to the plaintiff a lien I of thirty-two Shorthorn oon-s and heifers. In this action plaintiff charges that the cows were expressly warranted to be all right, suitable for breeding purposes, regular breeders, and that twenty-two head of them were with calf by a certain thorough- bred bull known as " Red Goldfinder." In a secontl coimt of his petition he charges that defendant falsely represented the cows to be a.s above stated, and that in A'iolation of said warranty, and contrary* to said representations, the cows, or many of them, were and had been sick of an obscure disease known as " contagious abortion," were not suital)le for use for breetling pur|")oses, and were not with calf by Red Goldfuider, to the great loss and damage of the plaintiff. The defendant took issue upon the allegations of warranty and false representations, and the verdict was in his favor. Counsel for appellant do not contend that the verdict is without support in the testimony, but argue that the trial court erred in its instructions to the jury and in refusing other instruc- tions asked. Only two propositions are relied upon for a reversal. I. It is said that the court, in the second paragraph of its instruc- tions, erroneously told the jur^- in sul)stance that, if plaintiff had failed to prove the alleged diseased condition of the cows at the time of their purchase, he could recover nothing from the defend- ant. This it is said unduly narrowed the issues, because the alleged warranty went beyond the matter of disease and assured the plain- tiff that the cows were suitable for breeding purposes and were with calf by Red Goldfinder. If we were to pass ujion this para- graph alone as applied to issues joined in the pleadings, there would be an appearance of merit in the objection here made. But the appropriateness of instnictions cannot be detennined by the jjleadings alone, for reference m\ist be had also to the testimony introduced and to the issues actually contested upon the trial. Counsel have not seen fit to al)stract all the evidence, but, taking it a,s given and referring to the transcript which has been certified to this court, it quite; clearly appears thai the alleged diseased condition of the <'ows was the one central fad upon which j)laiiitiff relied as a l)rea<-h of the aliege' differed, in their views of the evidence, from a large number of their fellows, such difference of opmion should mduce the minority to doubt the correctness of their own judgments, and lead them to a reexamination and closer scrutiny of the facts in the case, for the purpose of revising antl reconsidering their preconceived opinions. In this view, the court tlid nothing more than to pre- sent to the minds of the dissenting jurors a strong motive to unanimity. I'pon a careful consideration of these histructions, we are clearly of opinion, that so far from In'ing nnproper, or of a nature to mis- lead, they were entirely .sound, and well adajitcd to bring to the attention of the jury one of the means l)y whicli they might be .safely guided in the performance of their (hit y. A proper regard for tlie judgment of other men will often greatly aid us in forming our own. In many of the relations of life, it be('()nies a duty to yield and conform to the ()|)inions of others, when it can be done without a sacrifice of conscientious convictions; more especially is this a fhity, when we ;ire c:ill('i| on to ;ict with others, and when di.s.s<'nt on our p.-uM iiia.\ dct'cit all .-iction, and materially affect the rights and intcrrests of third parties. Such is the rule of duty constantly recogni/-e<| and acted on by courts of justice. They not CRANSTON V. N. Y. CENTRAL & HUDSON RIVER R. R. CO. 377 only form their opinions, but reconsider, revise, and modify their own declared judgments, by the aid and m the light of the decisions of other tribunals. But this could not be done, if it were not permitted to them to doubt and correct their opinions, when they were found to differ from those of other men, who have had equal opportunities of arriving at sound conclusions with themselves. The jury room is, surely, no place for pride of opinion, or for espousing and maintaining, in the spirit of controversy, either side of a cause. The single object to be there effected is to arrive at a true verdict: and this can only be done by deliberation, mutual concession, and a due deference to the opinions of each other. By such means and such only, in a body where unanimity is re- quired, can safe and just results be attained; and without them, the trial by jury, instead of being an essential aid in the administra- tion of justice, would become a most effectual obstacle to it. Exceptions overruled.^ CRANSTON, as Administratrix, etc., v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COM- PANY. Court of Appeals of New York. 1886. [Reported 103 New York, 614.] Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made February 11, 1886, which affirmed a judgment in favor of plaintiff, entered upon a verdict. (Reported below, 39 Hun, 308.) This action was brought to recover damages for alleged neg- ligence causing the death of David Cranston, plaintiff's intestate, who was killed while crossing defendant's road, the wagon in which he was riding having been struck by an engine attached to a train passing on said road. The facts, so far as material to the question discussed, are stated in the opinion. 1 In Highland Foundry Co. v. N. Y., N. H., & H. R. R., 199 Mass. 403, 85 N. E. 437 the court said: " There is perhaps no case in our reports more famiUar to those, whether on the bench or at the bar, who are engaged in the trial of jury cases, than Commonwealth v. Tuey. It is often quoted or read to juries slow in coming to a verdict, and many times with salutary effect. But it generally has been regarded by the profession as going nearly if not quite to the extreme limit." — Ed. 378 TRIAL R.\p.u.LO, J. It is a serious question whether the uncontro- verted evidence diii not db^close a want of the care and caution which the law retiuired of the plamtiff's intestate in approaching so dangerous a crossing as that at which he lost his life, and whether a nonsuit should not, therefore, have been ordered; but we need not discuss that question, as the case contains an exception which we are all agreed is well taken, antl requires a reversal of the judg- ment and a new trial. After the jury had retired to consider their verdict, they came uito court, and one of them stated that there was no probabihty of their agreeing. To this the court replied as follows: " I can't take any such statement as that, gentlemen; you must get together upon a matter of this kind." He then added, " no juror ought to remain entirely firm in his own convic- tion one way or another, until he has made up his mintl, beyond all Cjuestion, that he is necessarily right anil the others are necessarily wrong." To this statement the defendant's counsel excepted. The jury thereupon brought in a verdict for the plaintiff. \\'e are of opinion that the instruction excepted to was not a correct statement of the law. It was incumbent ui^on the party holding the affirmative of the issue, who in tliis case was the plam- tiff , to satisfy the jury, by a prepondenince of evidence, of the facts upon which her right to recover depended. If she failed to do so the defendant was entitled to a verdict. Tlie jurors who were not satisfied by the evidence, of the truth of the plaiutilT's allegations, were justified in refusing, for that reason, to find a verdict in her favor, altiiough they might not have made up their minds beyond all question that tliey were necessarily riglit, and that those who were in favor of finding a verdict for the plaintiff were necessarily wrong. To sustain this instruction would be to ca.st uix)n the defendant, in a civil action, a burden quite as heavy as that wiiich rests upon the prosecution in a criminal case, and perhaps still more onerous. If the evidence was so clear as to lead to a conclu- sion with the degree of certainty recjuired l)y the charge, there was nothing to submit to the jury, and it was the duty of the court either to direct a verdict or to nonsuit tiie plaint ifT. The judgment should be reversed ami a new trial i)r(lerc(l, costs to al>ide the event. All concur. Jiulgment reversed.^ ' Sec RirhanlBon v. Colomnn, K51 liui. 'J 10, 2'.) N. K. iMlO; ArnistrnnK v. Jiimi-J* A Co., ir>r, lu. r>(V2, IM> .\. \V. (iSC); (;ov<-y I'. ItoKJTs, Sf) Vt. 308, 81 Atl. li:i(); liurlow I'. I'o.Htor, 11 'J Wi.s. til.i, liif, N. W. 822. — Eu. LESTER V. STANLEY 379 Section IX. Conduct and Deliberations of the Jury. [Blackstone, Commentaries, Book III, *375-*376.] The jury, after the proofs are summed up, unless the case be very clear, withdraw from the bar to consider of their verdict: and in order to avoid intemperance and causeless delay, are to be kept without meat, drink, fire, or candle, unless by permission of the judge, till they are all unanimously agreed, a method of accelerating unanimity not wholly unknown in other constitutions of Europe, and in matters of greater concern. For, by the golden bull of the empire, if, after the congress is opened, the electors delay the election of a king of the Romans for thirty days, they shall be fed only with bread and water till the same is accomplished. But if our juries eat or drink at all, or have any eatables about them, without consent of the court, and before verdict, it is finable; and if they do so at his charge for whom they afterwards find, it will set aside the verdict. Also, if they speak with either of the parties or their agents, after they are gone from the bar; or if they receive any fresh evidence in private; or if to prevent disputes they cast lots for whom they shall find; any of these circumstances will entirely vitiate the verdict. And it has been held, that if the jurors do not agree in their verdict before the judges are about to leave the to'WTi, though they are not to be threatened or imprisoned, the judges are not bound to wait for them, but may carry them round the circuit from to\Mi to town in a cart. This necessity of a total unanimity seems to be peculiar to our own constitution; or, at least in the nembda or jury of the ancient Goths, there was required (even in criminal cases) only the consent of the major part; and in case of an equality, the defendant was held to be acquitted. LESTER V. STANLEY. Circuit Court of the United States for the District OF Connecticut. 1808. [Reported 3 Day, 287.] After this case had been committed to the jury, and they were about to retire, Livingston, J. remarked, that he understood it had sometimes been the practice with juries in this state to separate while they had a case under consideration. The rule of the common law requires them to be kept together until they have 380 TRIAL agreed on a verdict ; and on looking at the statute, we do not per- ceive that that varies it. The statute, indeed, appears to have been made in affirniiuice of the common law. The words are explicit: " And when the court have committed any case to the consideration of the jury, the jury shall be confined, under the custody of nil officer appointed by the court, until they are agreed on a verdict." If they separate before, and afterwards return a verdict, it will be set aside. NEWELL V. AYER et al. Supreme Judicial Court of Maine. 1850. (Reported 32 Maine, 334.] A MESSAGE was Sent by the jury to the Judge, that they were not likely to agree upon a verdict; and the officer, under direction of the Judge, opened the door and apprised the jury that they were called into court. It was then said by one of the jury that they could probably agree, and the Judge, on being notified of it, recalled the order. While the door was thus opened, two of the jurors left the room for a mmute or two, and then returned, after which a verdict was agreed upon. For this cause, a motion was made for a new trial. The two jurors testifietl that, their absence was upon a needful occasion, and that, while absent, they had no conversation with any person. Wells, J., ora!l>'. Where misconduct on the part of jurors has been of injur}' to a party, it is the duty of the court to set aside their verdict. It was mi.scouduct in the two jurors to leave their room without permission of the court. But they held no conversation witii any one, and it does not appear that any injury could have resulteon the floor in a fit, and the officer sent for a physician, and allowed him to administer to such juror, who recovered. Sub- sequently, the jury agreed upon a verdict for the plaintiff, sealed it up, and were discharged, and returned the verdict to court on Monday morning. The judge was satisfied that the officer acted in entire good faith, and that the defendant was in no way prejudiced by his acts. If the ruling was right, the verdict was to stand; otherwise, the verdict to be .set aside.' C. Allen, J. . . . On the motion for a new trial, the presiding judge found as a fact, that tlie officer acted in entire good faitli, and that the defendant was in no way prejudiced by his acts. Motions for a new trial are addres.sod to the discretion of the presiding judge. Boston V. Robbins, 111) Mass. 'M'.l Woodward v. Leavitt, 107 Ma.ss. 453, 400. His determination upon the matttTs of fact is not open to revision by us, nor is his decision overruling the motion, unless, as matter of law, he was re(|uired, upon the facts found, to ' The statement of facta Ih iihriil^^cd hikI ;i |);irt of tlic (»i)iiii(iii is omitted. — Ku. NICHOLS V. NICHOLS 383 set aside the verdict. Brady v. American Print Works, 119 Mass. 98, and cases cited. No other question is presented to us by the report in this case. In Commonwealth v. Rbby, 12 Pick. 496, which was an indictment for murder, the decision related only to cider, the use of which by the jury was held not to be a cause for granting a new trial; and it was stated, as the result of the authori- ties then brought to the attention of the court, that, where ardent spirits have been used by the jury, it is proper to set aside the verdict. Since that decision, the question has often arisen in other jurisdictions, and the preponderance of modern judicial opinion seems to be that taking spirits in moderate quantities as a bever- age is not necessarily regarded as a legal cause for a new trial, unless it is shown that it operated injuriously. Many cases upon this subject are referred to l)y counsel, and others are collected in Whart. Crim. PI. & Pr. §§731, 841. However this may be, we do not think the rules of law imperatively require us to hold that it is a legal cause for settmg aside the verdict, where a juror, who is seized with a sudden temporary indisposition, without the inter- vention or knowledge of either party to the suit, obtains and uses, merely for the relief of his disease or pain, a small quantity of spirits, and where it appears that he is not thereby disqualified for the due performance of his duty as a juror. The question of the effect of the mtroduction of the physician into the jury-room, for the purpose of giving medical aid and relief to the juror, who appears to have stood in pressing need thereof, is not free from difficulty. It is, however, obvious that a merely temporary attack of sickness, though it may for the time being incapacitate the juror, is not a necessary ground for the discharge of the jury. It is proper, when the circumstances will admit, to await the result, and see if within a reasonable time he so far re- covers as to enable the trial to proceed, or a verdict to be returned. If such sickness is brought to the attention of the court while the jury are deliberating on their verdict, and medical attendance appears to be necessary, the better way ordinarily would seem to be for the court to select a suitable physician, and to caution him in advance not to enter into any conversation with any of the jury upon the case, or upon any matter except such as may be directly connected with the needed relief for the disorder. The court must have the power, in its discretion, to allow suitable and necessary medicines and medical attendance to be furnished to the jury, and, indeed, it is its plaui duty to see to it that such are furnished in case of urgent need. In the present case, the judge 384 TRIAL was not accessible at the time, but nothing appears to have been done differently from what might well have been ordered by hun. The officer and the j^iiysician were both competent as witnesses to testify to the extent of their communications with the jury. There is no rea:?on to suppose that either of them said anything to any juror which in any way bore upon the case untler consideration; or that the course of substantial justice was to any extent perverted or disturbed by what occurred. This was a matter which it was especially for the presidmg justice to uivestigate. A\'e camiot say, as matter of law, that a ne\\' trial must necessarily be granted. It is not as if there had been a voluntary and gratuitous intrusion upon the deliberations of the jur}', for the piu-pose of taking part therein or of listening thereto, with a submission on the part of the jury to such intrusion, so that their deliberations were voluntarily conducted by them in the presence of an unauthorized person, as was the case in People v. Ivnapp, 42 Mich. 267, 269. In the various emergencies which are liable to occur in the course of a protracted trial, irregularities must occur sometunes. While the court will always seek to guard against them, and especially to keep the jur\^ as far as possible from all influences which can cast a suspicion upon the mtegrity of their \'erdict, it nevertheless ought not to be swift to grant a new trial on account of irregularities not attended with any mtentional wrong, and where it is made satis- factorily to appear tluit the party complaming has not and could not have sustained any injury from them. People v. Ransom, 7 Wend. 417, 424. 1 Bish. Crim. Proc. § 1277, and cases there cited. Judijincnl on the verdict.^ See Wesley v. ChicaRo, etc., Ry. Co., SI la. 441, rA N. W. 163. As to the effect of the drinking of intoxicating licjuors by jurors, see Sanitary Di.strict of Chicago v. CuUerton, 147 111. 385, 35 N. E. 723; Patrick v. Victor Knitting xMilLs Co., 37 N. V. App. Div. 7, 55 N. Y. Supp. 340. Am to the effect of eating or drinking without the pernii.s.sion of the court, see Coniinonwoalth v. Rolty, 12 Tick. (Mass.), 490, 51(5; 2 Thonip.son, Trials, 2d ed., sM-'cs. 2.")02, 2.5()3. As to the effect of the presence of a stranger in (li(> jury room, see Starling «. Thome, 87 Ga. 513, 13 S. E. 552; Harbour's Adm'rs i'. Archer, 3 Hibh (Ky.), 8. See also Sanitary District of Chicago i;. Cullerton, 147 111. 385, 35 N. E. 723; Haizley v. Welsh, 71 N. J. L. 471, GO Atl. 59; 2 Thompson, Trials, 2d ed., aec. 2.553. — Ed. STATE V. MURPHY 385 STATE V. MURPHY. Supreme Court of North Dakota. 1908. [Reported 17 North Dakota, 48.] Morgan, C. J.^ The defendant was convicted of the crime of forgery in the third degree, and sentenced to imprisonment in the penitentiary for the period of one year and six months. . . . After the jury had been dehberating on their verdict for about forty-eight hours, the trial judge was sent for by the jury, and he appeared pursuant to such request, and the following proceedings were had as stated by the trial judge in the settled statement of the case: " At some time between the hours of 8.30 and 9 o'clock on December 3, 190G, the said Honorable Chas. A. Pollock, on coming to the courtroom and his chambers and being informed that the jury or some of the jurors desired to communicate with him, went to the room where said jury were deliberating and were con- fined, rapped on the floor, and, the door bemg immediately opened by some one from the inside and being opened from right to left, stepped inside of the door, leaving the jury room door ajar, and while standing in the open space addressed the jury as follows: ' Good evening, gentlemen. I understand you want to see me. Have you agreed ? ' To which the foreman of the jury answered: ' No; I think we cannot agree.' Whereupon the Honorable Charles A. Pollock, after pausmg for a second, replied: 'I vdW ask you to consider the matter further. Good night.' Where- upon the said Honorable Chas. A. Pollock closed the door to the said jury room and returned to his chambers. Thereafter, in a short time, the bailiff reported to the said Honorable Chas. A. Pollock that the jury had agreed. That the visit of the said Honorable Chas. A. Pollock to the said jury room and the con- versation there had between himself and the juror, as aforesaid, was had in the absence of the defendant and his counsel, and was without the knowledge or consent of the defendant or his counsel, and that no person or persons were present at said conversation, except the Honorable Chas. A. Pollock and the members of the jury. And that no record was made at the time of what was said and done on the occasion of the said visit of the said judge to the said jury room. I will further state that my addressing the jury as ' Good evening,' or * Good night,' was nothing more than a saluta- ' A part of the opinion of the Chief Justice, together with the concurring opinion of Spalding, J., is omitted. — Ed. 386 TRIAL tion, and anything I said to them was not stated in a dictatorial maimer, or inteniletl or calcuUiteil as a threat. I will aikl, further, that in doing what 1 ditl I simply followed the practice which has obtained in this district so long as I have known anything of the practice, covering a period of 20 years. . . . Ami in going to the jur>' room upon the occiision in question the only object the court had was to ascertain whether any one was sick and miable to further deliberate, and also to find out whether they had agreed, and in no maimer by word, act or detM^l attempted to uifiuence their deliberations." As to the purity of the intentions of the judge in going into the jury room m this case, and there havmg the brief conmimiication with the jury, no certificate or proof is necessary so far as this court is concerned, as it well knows that his upriglitness and sincere desire to be absolutely just imd fair in all cases are beyond question. That admitted fact, however, does not meet the question before us, which is: Did he do that which was beyond his judicial functions in respect to the case ? We are forced to the conclusion that he did. His presence in the jury room for any kind of communication ^vith the jur>' is not contempliited by any provision of the statute. The opposite is the plain mference from the statute. All communi- cation to the jury in open court is subject to exception In' the parties, if deemed improper. If any communication is made to them in the jury room in the absence of the parties, no opportu- nity is afforded for objections and exceptions at the time. The open court is the place for communications to the jur>' in the presence of, or on notice to the attorneys. The jury room is for the jury alone, and no communications are allowed with them in the room except upon ortlers from the court through the officer in charge of them, who is permitted to :usk them whether they have agreed upon a verdict. All communications to the jury in refer- ence to the case should be made in open court, and all communica- tions to them in the jury room avoided. In this way all dislru.st and fear that something improjxT is .said or done will be without fcjundation, and every act l)c subject to exception and review. Any communication by word or writing not in open court affects the efficiency of jury trials as a means of accomplishing justice after giving all parties full oj)iK)rtunity of being heard at all stages of the trial. A strict compliance with this practice of having all pro- ceeflings in court in the prcst^nce of cdunsel, or on notice to them, unl(«H waived, is better than to countenance violations ther(H)f unless prejudice is siiown. The state urgently insists t.hat no prej- STATE V. MURPHY 387 udice could have resulted from what was done or said in this case, but we shall not consider that question. However, the fact that the foreman said that he thought they could not agree when the judge first spoke to them, and that they did agree in five or ten minutes thereafter, would be a stubborn fact for consideration if we entered upon an inquiry as to the effect upon the jury of the words spoken to them and the visit to the room. We think that any communication in this way as to the case should be prohibited and held prejudicial. It is against the policy of the law to indulge in secret communications or conferences with the jury or with jurors in reference to the merits or law of the case. To determine in each case whether prejudice resulted would be difficult, if not impossible, and justice will be better subserved by avoiding such communica- tions entirely. The authorities are practically unanimous in condemning such communications, and in holding them prejudicial as a matter of law. In State v. Wroth, 15 Wash. 621, 47 Pac. 106, the court said: " In the discharge of his oflScial duties, the place for the judge is on the bench. As to him the law has closed the portals of the jury room, and he may not enter. The appellant was not obliged to follow the judge to the jury room in order to protect his legal rights, or to see that the jury was not influenced by the presence of the judge; and the state cannot be permitted to show what oc- curred between the judge and the jury at a place where the judge had no right to be, and in regard to which no official record could be made." In Hanover v. State, 125 Wis. 444, 104 N. W. 116, the court said: " These rights are clearly of an important nature, and affect the substance of a jury trial and the right of a party to be heard or to bring in review every transaction of the court's pro- ceedings. For the attainment of the best administration of j ustice, the law requiring that all proceedings of courts be open and pubhc, and in the presence of the parties or their representatives, must be strictly enforced; and, in case of any infringement of this policy, parties are not to be put to the burden of showing that it in fact injured them, even though it be manifest that no improper motives prompted the acts complained of." In Sargent v. Roberts, 1 Pick. (Mass.) 337, 11 Am. Dec. 185, the court said, speaking through Mr. Chief Justice Parker: " As it is impossible, we think, to complain of the substance of the communication, the only ques- tion is whether any communication at all is proper; and, if it was not, the party against whom the verdict was is entitled to a new trial. ... No communication whatever ought to take place 388 TRIAL between the judge and the jury, after the cause has been submitted to tliera by the charge of the judge unless in open court. . . . The only sure way to prevent all jealousy and suspicion is to con- sider the judge as having no control whatever over the case except in open court in the presence of the parties and their counsel. The public interest recjuires that litigating parties should have nothmg to complain of or suspect in the administration of justice, and the incon\'€niience of the jurors is of small consideration comparetl to this great object. ... It is better that everybody should suffer inconvenience than that a practice should be contuiued which is capable of abuse, or at least of being the ground of uneasiness and jealousy." See, also, Danes v. Pearson, Ind. App. 465, 33 N. E. 976; Du Gate v. Town of Brighton, (Wis.) 114 N. W. 103. The other questions argued in the hr'wi will not probably arise on another trial. Hence consideration of them is not material. The judgment is reversed, a new trial granted, and the cause is remanded for further proceedings.^ KXIGIIT IK THE INHABITANTS OF FREEPORT. Supreme Judicial Court of Massachusetts. 1816. [Reported 13 Mctssachusetts, 218.) After a verdict at the last October term for the plaintiff in review, and Ix'fore judgment, the counsel for the defendants in review moved the court for a new trial; on tiie ground that one Abel A. Briggs, who was a witness for Knight on the trial of the cause, after the empanneling of the jury and before the trial, applied to Justin Kent, one of the jurors, and stated to him tiiat this cause was of great conse(|U('ncc to him, Briggs; and if it went against Knight, he, Briggs, should have to pay the costs; and that the defending the action was a spiteful thing on the part of the said inhal»itants of l'Veej)ort: the said counsel declaring that they had no knowledge of the said facts, until .after the jury had re- turned their said verdict. — The juror t«>stified to the truth of the foregoing statement: and added that Knight was not present at ' See SiirRcnt i;. IloljortH, 1 Pick. (Mass.), 337, 11 Am. Deo. 185; Mosclcy t». WuHhhuni, 10.-, Milh-m. 117, V.i X. K. 1S2; IUthI r. Moxoni. 1()3 Mo. App. 123, lir> S. W. H.')7; Wiitertowii Hank i' inspect the premises sought to be con- » See also Bowler v. Washington, 62 Me. 302. — Ed. 390 TRIAL demned. After the examination of the premises and before return- ing to the court-room, four of the jurors, apart from the officer in charge of tlie jury, went to a saloon in company of the petitioner, defendant in error here, and at his invitation drank with him at the har of the saloon. This was conckisively sho\ni l)y the affidaN'its filed m support of the motion for a new trial. Two of the jurors state in their affidavits that the petitioner took them to a saloon and treated them, hut that their verdict was not mfluenced thereby, anil that they ditl not know they hail been doing wrong. The court offered to set aside the verdict and to grant a new trial upon the payment of the costs by the respondent, but the resix)ndent refused to take a new trial upon the terms proposed. Judgment was then entered, and the respondent appealed. A new trial should have been granted, and the petitioner should have been required to pay the costs. Such action on the part of the petitioner and the jurors cannot be tolerated, and to excuse such conduct would be to render a trial in a court of justice a farce. It may be that the petitioner and jurors were entirely umocent of any wrong intent, and that no wrong or injustice was in fact done, but the opportunity for wrong-donig under the conditions sho^\^l in the affidavit is so great that we must, in order to maintam the integrity of judicial procedure, reverse the case. Jurors who sepa- rate from the other jurors and the officer in whose charge they are and accept entertainment from one of the parties while they are considering the case are guilty of such misconduct that a verdict rendered ijy them has not the appearance even of bemg fair imd impartial. And a party who so far forgets his position as a litigant as to furnish entertainment for jurors who are to pass upon the merits of the controversy in which he is engaginl should not com- plain if a verdict in his favor by jurors with whom he has been m such clo.se communication, and to whom he has furnished drink, is set aside on motion of his adversary. Nor should the court con- sider whetlier the verdict was or was not influenced by the jx'ti- tioner. The conduct complained of is so manifestly improiwr that there is but one course open. Nor shall we consider what other courts have done under similar circumstances. Questions like these carmot l>e determined by the weight of authority, unless there be a doubt in our minds as to the course for us to pursue; and as no doubt exists, wc; shall reverse the judgment. licvcrscd} Mr. Justice Goduahu and Mr. Justice Bailey concur. « See Biirkc v. McDoiiaM, :i Idii. 'JW; Viine v. Kvunston, 15() 111. 616, 37 N. Iv 'M)\ ; nriiinane ComniiHHiotUTH t'. Knox, 'I'M 111. MS, S() N. E. (i.'jd; Tripp THOMAS V. CHAPMAN 391 THOMAS V. CHAPMAN and Another. Supreme Court of New York. 1865. [Reported 45 Barbour, 98.] Motion to set aside a verdict on account of the misconduct of the officer having charge of the jury. Sutherland, J. With some hesitation I have come to the conclusion that the verdict in this case must be set aside for mis- conduct of the officer having the jury in charge. Bird, one of the jurors, in his affidavit, states expressly, that the officer " stated to them (the jury), that the court had adjourned and left orders for him (said officer), to lock up the jury and keep them all night, unless they agreed upon a verdict; that the case was clear for the plaintiff, and that the jury had better agree and go home; that if they did not, soon, he should lock the jury up for the night." That on several occasions in the course of the afternoon, the officer made " the announcements, threats or intimations in about the words above stated." It is also stated in the affidavit of Bird, that he was quite unwell at the time, and but for the prospect or fear of being locked up for the night, he never would have agreed to the verdict, which was rendered for the plaintiff for S2348.07. Thomas, another of the jurors, states in his affidavit that the statement in Bird's affidavit as regards the words used by the officer, is true, and that he " would never have agreed to the verdict, had it not been for the prospect of being kept up all night," &c. The affidavit of the officer having charge of the jury is not entirely satisfactory. He states that the jury retired after the charge of the court, at about haK past twelve o'clock; that the court adjourned about three o'clock; that he " did not have any communication with the jurors, or any of them, except to ask them if they had agreed upon their verdict, or to listen to remarks or inquiries which they made to him ; that he did not say anything to them, in reference to the merits of the case or their deliberations a^ jurymen." He states, that upon informing the jur>' that the Judge I'. County Comr's, 2 Allen (Mass.), 556; Kellogg v. Wilder, 15 Johns. (N. Y.), 455 {semhle, though both parties treated and with court's consent); McGill Bros. V. Seaboard Air Line Ry., 75 S. C. 177, 55 S. E. 216. And see a note to the principal case in 19 L. R. A. (n. s.), 733. When the value of cigars was in issue, the treating of the jury to cigars by a party is clearly ground for new trial. See Piatt v. Threadgill, 80 Fed. 192. — Ed. 392 TRIAL had directed him to allow them to go out for refreshments at five o'clock " one of the jurors asked dei)onent what he would do with them after that; whether he would lock them up all night; that dejx)nent would not tell them what his instructions were on that point, and passed it off by sa^-ing, / suppose so," &c. It is true, the officer tlenies, in his affidavit, that he said to the jury what Bird and Thomas, the two jurymen, say he saitl; or that he used words of hke tenor and effect; but I think his affidavit contains a confession that he did say what he ought not to have said. The affidavit of the other ten jurors is a mere general affidavit, that the statements in the officer's affidavit as to the contluct of the officer, and his communications with the jurj', are true. Conced- ing this affidavit to have been made m the most perfect good faith, it probaljly only amounts to this, viz.: that the ten jurors diil not hear or may not have heard, the statements of the officer men- tioned in the affitlavits of the other two jurymen. Affidavits of jurors will not Ije received to show their own mis- conduct, or the misconduct of their fellows (Clum v. Smith, 5 Hill, 5G0); but I think there is no doubt that they are admissible to show the misconduct of a party, or of tiie officer havmg charge of them. See Reynolds v. Champlain Trans. Co., 9 How. Pr. R. 7. Tiiat portion of the affidavits of the two jurors which goes to show tliat they agreed to the verdict only in con.se(iuence of the statements of the officer, is not probably admissible for that purpose; (Taylor r. Everett, 2 How. Pr. R. 23), but it is not necessary for the defendant, Cliapman, to show that tiie verdict was in fact influenced by the statements of the officer. It is sufficient, I think, for him to show that there is reason to suspect that the statements wore made, and if made, tliat they were likclj' or calculated io influence the verdict. Wilson v. Abrahams, 1 Hill, 211. Knight v. Inhabitants of Freei)ort, 17 Mass. R. 218. Coster V. Merest, 3 Brod. e granteii, with SIO costs, to abide tlie event of the action. Of cour.se it will be neces.sary to deci(h' the motion for a new trial on the case made.' > Compare People v. Sheldon, intj N. Y. 'JOS, fjO X. E. 840. — Ed. DARLING V. NEW YORK, PROVIDENCE AND BOSTON R. R. CO. 393 DARLING, Administrator, v. THE NEW YORK, PROVI- DENCE & BOSTON RAILROAD COMPANY. Supreme Court of Rhode Island. 1892. [Reported 17 Rhode Island, 708.] Matteson, C. J. The defendant petitions for a new trial on several grounds, of which three only were urged at the hearing, viz.: first, that the verdict was against the evidence; second, that the court erred in its instructions to the jury; third, that the jury were influenced in their decision by a communication to them by the officer in charge of them.' . . . After the case had gone to the jury, and they had been in their room about an hour deliberating upon their verdict, the judge directed the officer in charge of them to inquire of the foreman if there was a prospect of an early agreement, as he wished to go out to dinner at a quarter of six. The officer conveyed the message to the foreman, who answered that he would knock by quarter of six and let the court know whether the jury had agreed. Thereupon the officer said to the foreman, " If you do not, you can take your owTi time," and jokingly added, " all night, if necessary." The defendant contends that this remark of the officer operated as a threat to the jury that, unless they agreed before a quarter of six, they would be kept out all night, or at least until they should agree within that time, and was therefore such a constraint put upon them as to render their verdict void ; and it further contends that it is not required to show affirmatively that such communica- tion tended to its injur j^, but that such communication was so dan- gerous and impolitic that it should be presumed conclusively that harm was done. There are cases which support this claim. Cole V. Swan, 4 Greene, Iowa, 32; Obear, Executor, v. Gray, 68 Ga. 182. But the weight of authority, and the better opinion as it seems to us, is to the effect that, unless the communication from the officer to the jur>' had a manifest tendency to influence the jur>^ improp- erly against the unsuccessful party, or was such that prejudice has resulted to such party, it furnishes no ground for a new trial. Thus, in Wiggin v. Do^\^ler, 67 How. Pr. 65, it was held that the expression to the jury by the officer in charge of them of an opinion that unless they agreed they would be detained until the nex-t day at noon, though improper, was not such an irregularity as should avoid the verdict, and did not amount to an illegal constraint. ^ Only the opinion of the court on the third ground is given. — Ed. 394 TRIAL And, again, in Leach v. Wilbur, 9 Allen, 212, it appeared that between four and five o'clock iii the raoniing, the jury having retired to their room about five o'clock of the preceding day, Thursday, one of the jurors asked the officer having them in charge how long the court woukl keep them together, and he replieil that he ditl not know, but they would have to stay mitil Saturday, and that a little after five o'clock the jury agreed. It was held that a new- trial would not be granted. .Vntl see Reins v. The People, 30 111. 256; Price v. Lambert, 3 X. J. Law, 122; Pope & Jacobs v. The State, 36 Mass. 121; McGuire v. State, 10 Tex. App. 125. The officious intermeddling of the officer was highly reprehensible, and might have subjected him to punishment; it was a violation of his duty and of his oath; but it appears to liave been thoughtless, without any design to favor either party, and it hatl no manifest tendency to prejudice the defendant; nor does it appear that prejudice has resulted from it to the defencbnt. The defendant, it is true, has produced the affidavit of a juror to his belief that the message of the court and the remark of the officer influenced the jury m giving a v^erdict for the plamtiff, as, immediately after, certain of the jurj' who had been for the defendant clianged and agreed to a verdict for the plaintiff. But, apart from the considera- tion that the affidavit of a juror is not competent evidence to prove what takes place in the jurj'- room for the purpose of impeaching the verdict, the affidavit is only to the belief of the juror based upon a fact by no means conclusive. Defendant's petition for a new trial denied and dismissed. PAGE V. WHEELER et al. Superior Court of Judicature of New Hampshire. 1829. (Reported 5 New Hampshire, 91.) Assumpsit for goods sold and delivered, between (he 2111i Deeember, 1826, and the 13th June, 1827. Tlie ruu.se was tried here upon the general issue, at October tenn, 1828. It was admitted that the goods mentioned in the declaration were sold to Jormthan \\'heeli'r, one of the defendants by the j)laiiitin", and that they were delivere I'irk. (Miihh.j, 21M>; O'Hrien v. Mcrchantw' Iiih. Co., is How. Pr. rN. Y.), 448; Pittalmrgh v. i'itt.shurnh Hys. Co., 2:i\ I'a. 22:i, K.i All. 27M, .\im. Cjui. HH.'l C. m:i. For the Htutut<'8 in the several statea on thi.H siil>j«'(t, sec J 'rh', it is competent for a deputy sheriff who Irnd the charge of the jury during their deliberations in the jury room to testify to what he heard .s;iid anil done by the jury, in the jury room, for the pur- pose of showing that the jury decided the case by lot, or by the drawing of a ballot from a hat in which ballots hatl been put, some marked for the plaintiff and some for tiie tlefendant. It is certainly not the duty of an officer in charge of a jury to li.sten to the deliberations of a jury ui the jury room; but if he does, his testimony camiot be excluded on the ground that his knowledge was obtainetl ui this maimer, if it is othenvise compe- tent. The rule excluding testimony of the conduct of jurors in the jurj' room when deliijerating upon a veriliet ought to liave some limits. It seems that, in England, it has been finally settleil tliat the affidavit of a juror will not be received to show that the verdict was determmetl by lot. \'ai.se v. Delaval, 1 T. R. 11. Owen r. Warburton, 1 B. & P. 326. Straker v. Graham, 7 Dowl. Pr. Cas. 223, 225. The weight of authority in this country also is that the affidavits or the testimony of jurors to show such a fact will not be received. Dana v. Tucker, 4 Johns. 487. Cluggage v. Swan. 4 Biim. 150. Brewster v. Tiiomjjson, Coxe, 32. Griunell V. Phillips, 1 Mass. 530, is regarded as overruled in Woodward r. Leavitt, 107 Mass. 453, 461, 462. It lias always been held that, if a verdict is obtained by resorting to chance or by drawing lots, it will be set aside. Mitchell r. Ehle, 10 Wend. 595. Donner v. Palmer, 23 Cal. 40. Ruble v. McDonald, 7 Iowa, DO. Bircliard V. Booth, 4 Wis. ()7. Dorr v. Fenno, 12 Pick. 521. Forbes v. Howard, 4 R. I. 364. In N'ai.se r. Delaval, ubi supra, where a verdict was obtained by tossing up, Lord Maasfield said: " The (•iit in every such ca.se thccourt must (|rii\«' their knowl- (HJ^e from .s See Campbell v. Brown, 85 Kan. 527, 117 Pac. 1010. For ft discu.ssion of compromise veniirts, see Simmons v. Fish, 210 Mass. 563, 97 N. E. 102, Ann. Cas. 1912 D. 5S8, where the court, Rung, C. J., said: " A verdict which is the result of real harmony of thought growing out of open- minded discu.ssion between jurors with a willingness to be convinced, with a proper regard for opinions of others and with a roa.sonable distrust of individu.al views not shared by their fellows and a fair yielding of one reason to a stronger one, each having in mind the great desirability of unanimity both for the parties and for the public, is not open to criticism. Hut a verdict which is reached only by the surrender of conscientious convictions upon one matcri.d issue l)y 8f>mc jurors in return for a relinquishment by others of their like .settled opinion upon another issue and the resvilt is one which does not command the approval of the whole panel, is a eomi)romise verdict founded upon conduct subversive of the soundness of trial by jury. The jury room catmot l)0 entered in order to luwerUiin what has tranHpire' having retired antl ileliberatetl, returned a written verdict into court on the 12th day of December, 1892, ' finding the issues for the defendant,' signed by nine (9) of its members — the others refusing to concur therein. Which verdict the court then and there received and caused to be entered upon the record. " To which action of the court the plaintiff excepted." Mr. Justice Brewer, after stating the case, delivered the opinion of the court. As the amount in controversy is over SoOOO this court in any view has jurisdiction of the case, and may inquire into all matters properly preserved in the record. The recital in the bill of excep- tions shows that proper exceptions were taken to the charge of the court in respect to the number of jurors whose concurrence was es.sential to the verdict, and also to its action in receiving and enter- ing of record such verdict. The territorial statute was reliccl upon as authority for this action. Its validity, therefore, must be detennined. Whether the Seventh Amendment to the Constitution of the United States, which provides that " in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved," operates ex propria viqnrc to invalidate this statute, may be a matter of dispute. In \\'('bster v. Heid, 11 How. 437, an act of the legislature of the Territory of Iowa dis- pensing with u jury in a certain class of common law actions was held void. Willie in the ojjinion, on page 400, the Seventli Amend- ment was quoted, it was al.so .said : " The organic law of the Terri- tory' of Iowa, by express provision and by reference, (>xtended the laws of th(? United Sbates, ineiuding tlie ordinance of I7S7, over the Territory, ho far as they an* applicaliie "; ami I lie ordinance of 1787, article 2, in terms fjrovided tiiat " tlie iiiiial>ilan(s of tlie said AMERICAN PUBLISHING COMPANY V. FISHER 403 Territory shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury." So the invalidity may have been adjudged by reason of the conflict with Congressional legislation. In Reynolds v. United States, 98 U. S. 145, 154, it was said, in reference to a criminal case coming from the Territory of Utah, that " by the Constitution of the United States (Amend- ment VI) the accused was entitled to a trial by an impartial jury." Both of these cases were quoted in Callan v. Wilson, 127 U. S. 540, as authorities to sustain the ruling that the provisions in the Constitution of the United States relating to trial by jurj^ are in force in the District of Columbia. On the other hand, in Mormon Church V. United States, 136 U. S. 1, 44, it was said by Mr. Justice Bradley, speaking for the court: " Doubtless, Congress in legislat- ing for the Territories would be subject to those fundamental limitations in favor of personal rights which are formulated in the Constitution and its amendments; but these limitations would exist rather by inference and the general spirit of the Constitution from which Congress derives all its powers, than by any express and direct application of its provisions." And in McAllister v. United States, 141 U. S. 174, it was held that the constitutional provision in respect to the tenure of judicial offices did not apply to territorial judges. But if the Seventh Amendment does not operate in and of itself to invaUdate this territorial statute, then Congress has full control over the Territories irrespective of any express constitutional limitations, and it has legislated in respect to this matter. In the first place, in the act to establish a territorial government for Utah, act of September 9, 1850, c. 51, § 17, 9 Stat. 453, 458, it enacted " that the Constitution and laws of the United States are hereby extended over and declared to be in force in said Territory of Utah, so far as the same, or any provision thereof, may be applicable." A subsequent statute has more specific reference to jurj^ trials. Act of April 7, 1874, c. 80, 18 Stat. 27. The first section of this act, after confirming the statutes of the various Territories so far as they authorize a uniform course of proceeding in all cases whether legal or equitable, closes with this proviso: " Provided, that no party has been or shall be deprived of the right of trial by jury in cases cognizable at common law." This, of course, implies not merely that the form of a jury trial be preserved, but also all its substantial elements. Walker v. Southern Pacific Railroad, 165 U. S. 593. 404 TRIAL Therefore, either the Seventh Amendment to the Constitution, or these acts of Congress, or all together, secured to every litigant in a common law action in the courts of the Territory of Utah the right to a trial by jury, and nullified any act of its legislature which attempted to take from him anything which is of the substance of that right. Now mia.nnnity was one of the peculiar and essential features of trial by jury at the common law. No authorities are neetled to sustain this jjroposition. Whatever may be true as to legislation which changes any mere details of a jury trial, it is clear that a statute which destroys this substantial and essential feature thereof is one abridging the right. It follows, therefore, that the court erred in receiving a verdict returned by only nme jurors, the others not concurring. In order to guard against any misapprehension it may be proper to say that the power of a State to change the rule in respect to unanimity of juries is not before us for consideration. Walker v. Sauvinet, 92 U. S. 90; Hurtado v. California, 110 U. S. 516. The j udgment will be Reversed, and as the questions involved in the case are riot of a Federal nature, and diverse citizenship is not alleged, the case must he remanded to the Supreme Court of the State for further proceedings.^ WEEKS V. HART. Supreme Court of New York, Gener.\l Ter.m. 1881. [Reported 24 Hun, 181.] Appeal from a judgment in favor of the i)laiutity, entered upon the verdict of a jur\ , and from an order denying a motion for a new trial iiuide upon the minutes of the justice before whom the action was tried. GlLiiEin", J. When the jurors were polled one of them responded tlmt he was not satisfied with the verdict. The court asked the juror if lie had not agreed to the verdict, and the juror responded that he luid. The defendant's connsel objected to the entry of the verdict, the c(jurt overrnled the objection and the defendant's coun.sel excepted. Whereupon the court directed the verdict to be ' Sec al«> Ra«jmu.s.scn r. Tnited States, 107 V. S. .'ilC, Jft L. cd. 802, 25 S. Ct. 514. And HOC an nrticlo on " Modifieatioiis of the .Jury System " by Professor John linrton Phillips, in l«i r.rcon Wim, 514. — Ed. FOX V. SMITH 405 entered. That direction was clearly erroneous. The jury should have been sent back for further deliberation. The right of a juror to dissent from a verdict to which he had before agreed, is not lost until the verdict has been recorded. Any expression of dissent before that has been done, destroys the unanimity which is essen- tial to make a verdict valid. Labar v. Koplin, 4 Coms. 550, and cases there cited; 3 Waite's Pr. 192. This error being decisive it is unnecessary to consider the other questions presented. The judgment and order must be reversed and a new trial granted, with costs to abide the event. Barnard, P. J., concurred; Dykman, J., not sitting. Judgment and order denying new trial reversed and new trial granted, costs to abide event. ^ FOX V. SMITH. Supreme Court of New York. 1824. [Reported 3 Cowen, 23.) E. Griffin, for the defendant, moved to set aside the verdict in this cause, which was rendered for the plaintiff at the last Jefferson Circuit, under the following circumstances: The trial not being closed till evening, it was agreed by the counsel for the parties, that the jury might bring in their verdict sealed the next morning, which was accordingly done. On the jury coming into the box the next morning, and presenting their verdict sealed, the defendant's counsel requested of the Judge to have the jury polled, which he denied, and the verdict was recorded. WooDWORTH, J. Conceding that the Judge may order the jury polled, seems to give the party a right to insist on it. I think this cannot be a matter of mere discretion. It has been the uniform practice at the Circuit, as far as I have been acquainted ^vnth it, to allow the jury to be polled, whether the verdict be sealed, as here, by consent, or delivered ore tenus by the foreman. 1 Owens f.^Southern Ry. Co., 123 N. C. 183, 31 S. E. 383; Frick v. Rey- nolds, 6 Okl. 638, 52 Pac. 391; Scott v. Scott, 110 Pa. 387, 2 Atl. 531, accord. Compare Hill v. State, 64 Ga. 453; McCoy v. Jordan, 184 Mass. 575, 69 N. E. 358; Lowe r. Dorsett. 125 N. C. 301, 34 S. E. 442. A juror may dissent from the verdict although the jury is not polled. Lawrence v. Stearns, 11 Pick. (Mass.), 501. — Ed. 406 TRIAL Curio. We think the jury may be polled, at the instance of either party, at any time l)efore the vertiict is reoortled, whether it be sealed, by consent, or is oral. Motion granted.^ BISHOP V. MUGLER. Supreme Court of Ivajs'sas. 1885. [Reported 33 Kansas, 145.) Johnston. J. The district court of Saline county granted a peremptory ^^Tit of mantlamus against the ])laintiff in error, who is a justice of the peace of said county, commamling him to receive and file a verdict alleged to iiave been agreed upon by a jury in a certain cause tried before him as a justice of the peace, where the defendant in error was plaintiff and one William Huebner was defendant. From the pleadings and the evidence in the recortl, it fairly apjx'ars that the cause was submitted to the jury late in the evening, and the justice of the peace, with the consent of the coun- sel, instructed the jurors that if they agreed ujwn a verdict during the night, they might seal the same and separate, returning the verdict into court on the next morning at nine o'clock, to which time the coiui; adjourned. 'Hh' jury reached an agreement during the night, when the vertiict was signetl and given to the l)ailiiT, anil the jurors disjjersed. The bailiff carried the verdict in his ])ocket for a short time, and then returned and deposited it upon a desk in the office of the justice of the peace. The attention of the justice of the peace was calletl to it in the morning, and he was informed that it was the verdict agreed upon the jjrcvious night. Upon the convening of the court, on the next morning, the jury failed to ajJiM-ar, and the justice directed the bailiff to bring the jury into court. After some effort to find the jurors, the bailiff returned and rcjjorted that only four of the jurors could be found. It was then suggested that the venlict which iiad l)cen returned by (he bailiff to the justice be received and liled, but the i-oun.M'l for defendant o!)ject('(l to its reception, hecause it had been out of the hands of the jury, and insisted that it could not be received unless ])resented by the jury, with all aine day, and ' Smith V. Paul, l.'}:} X. T. 00, J.', S. K. ;MS, urmnl. i;(i|)|.s r. liaikcr, 1 Tirk. (MiuiH.;, '..i.'i'.J, cntilnt. Ah to th«r time wJion tlie motion mii.st lie miulc .see Ziniiiicriuiiii v. Detroit, etc., Co., 11.1 Mirh. 1, 71 N. W. .TJl; Kottmimd r. I'u. li. It. Co., 225 I'u. 410, 74 All. 341 ; 22 Encyc. of I'l. .V I'r. »35. — Ed. BISHOP V. MUGLER 407 the bailiff was instructed, in the meantime, to make search for the absent jurors and bring them into court at that time. The court reconvened at 3 p. m., when five of the jurors appeared, the bailiff reporting that he was unable to find one of the jurors, or learn anything of his whereabouts. The justice then refused to receive the verdict, declared a mis-trial, discharged the jury, and continued the case for future disposition. Whereupon, the defendant in error instituted this proceeding in mandamus, and obtained a peremptory writ as above stated. The plaintiff alleges error. The question presented for our determination is, was it the duty of the justice of the peace to receive and file the verdict brought into court in the manner hereinbefore stated, and can its reception and filing be compelled by mandamus ? It will be observed that the agreement of counsel and the direction of the court did not go further than to permit the jury, when they had agreed upon a ver- dict, to seal it, and separate for the night. This cUd not operate as a discharge of the jury, but it remained in existence as an or- ganized body, and it was the duty of the jurors to have appeared at the convening of the court the following morning, and there, through their foreman, to present and publicly announce the ver- dict previously agreed upon. The permission to seal the verdict and separate for the night, did not dispense with, the necessity of their attendance upon the court at the time to which it had ad- journed. The determination of a jury, although formally stated in a verdict, and signed and sealed, is not final with them, but it remains A\dthin their control and subject to any alteration or amendment they desire to make, until it is actually rendered in court and recorded. It is well settled that any member of the jury is at liberty to withdraw his consent from a verdict already agreed upon, at any time before it is received and recorded (Root v. Sherwood, 6 Johns. 68; Proffatt on Trial by Jury, § 449), and until a sealed vercUct is properly received and recorded in court, it is without force or vahdity. Proffatt on Trial by Jury, § 460. Except by consent, the verdict can only be rendered by a full jury. Every member should be present when it is received, so that the parties may avail themselves of the right to examine each juror, and learn if he concurs in the verdict announced. The main pur- pose in requiring the jury to bring in their verdict, and personally present it in open court, is that the parties may have an opportu- nity to poll them, or to correct any informality found in the verdict presented. The polling of the jury is not a mere mattter of dis- cretion with the court, but is an absolute right of the parties to the 408 TRIAL suit. It was said in Maduska v. Thomas, 6 Kas. 159, " that in all cases a party ha.s a right to know whether a supposed verdict is the verdict of each juror, or of only one or more of the jury; and if §§ 283 and 284 of the ci\'il code do not apply where the jury decide \\ithout retiring from the jury-box, still the common law would give each party a right to know the verdict of each juror." See also Thomburgh v. Cole, 27 Kas. 490. Of course some of these requirements and rights might have been waived and dispensed with by the agreement or conduct of the parties. Here there was no such agreement or waiver. The defendant in the action stood upon his rights, and strenuously ol)jected to the reception of a verdict unless it was regularh' presented by the jury as an organized body, with every member present. With the aid of the bailiff five of the jurors were found and brought into court, but the sixth could not be found. The determination of the five jurors was not a valid verdict, and the court could not receive it as such. Mad- uska V. Thomas, supra. There has been no brief filed or argument made in this court in behalf of the defendant in error; but it is stated that to support his application for the \\Tit, he relied upon the case of Munkers v. Watson, 9 Kas. 668. It is not authority in this case. There the verdict was unanimously agreed uj^on by the jur>', reduced to writing in duo form, returned by the jury, and regularly presented to the court, but for insufhcient reasons the court refused to re- ceive and enter the same. In this case, contrary to the injunction of the court, the jury disbanded before the rendition of a verdict, and as they did not asseml)le again, no valid verdict coukl be ren- dered by them. That which was returned was not a verdict, and therefore the court cannot be compelled by mandamus to receive and file it. Some question is raised us to whether the court should not have comj)ell('d a more extendecl search, and a greater effort to secure the attendance of the absent juror. It would seem that a rea- sonable effort was made to bring the jury together, l)ut that ques- tion cannot be (Ictcriuiiifd in this proccMvling, which is l)rought for the purpose of compelling the rece])tion and filing of an alleged verdict, and not to comjx'l the re-as.seml)ling of the jury. The judgment (jf the district court will be reversed.' All the Justices concurring. • Compare Ilumphricfl v. District of Colunil)!.-!, 174 ('. S. I'.K), U L. od. 914, 14 S. Ct. iVM. Ab to whetlior llic coiiaeut uf tlic ijurtica tu u soalcd verdict is necessary, see KRAMER V. KISTER 409 KRAMER V. KISTER. Supreme Court of Pennsylvania. 1898. [Reported 187 Pennsylvania, 227.] Mitchell, J.^ . . . The jury having agreed to a sealed verdict separated, and the next morning the verdict was handed up, opened and announced, but on the jury being polled one juror dissented, whereupon the judge sent them out again with some strong remarks on keeping them until they had agreed. In a short time they returned with the same verdict as the one sealed, and it was received and recorded against the defendant's objection. The practice of allowing the jurj^ to seal a verdict and then separate is very general throughout the United States. Seventy- five years ago Chief Justice Gibson spoke of it as in common use in Pennsylvania, having grown out of and superseded the pri\'y' ver- dict kno\\Ti to the common law, which was delivered to the judge out of court: Domick v. Reichenback, 10 S. & R. 84. Both forms were alike in being without binding force as verdicts until delivered by the jur>' in court. All the authorities agree that the only ver- dict is that which the jury announce orally in court, and which alone is received and recorded as the jury's finding: Domick v. Reichenback, supra; Scott v. Scott, 110 Pa. 387; Com. v. Breyessee, 160 Pa. 451. The authorities also agree that, as the only verdict is that announced by the jurj' in court, if with or without a poll any juror disagree, there is no verdict: Scott v. Scott, supra. But the course to be pursued in such case is an open question upon which we have no direct authority in this state. A verdict which is merely defective in form, whether sealed or not, and whether the jury have separated or not, may before it is recorded be recom- mitted to them for correction, as for example to calculate the interest where they have found for plaintiff for a sum certain " with interest ": Wolfran v. Eyster, 7 W. 38; Reitenbaugh v. Ludwick, 31 Pa. 131. But for a defect in substance where the jury has separated, and a fortiori for a defect that prevents the jur>''s delivery from being a verdict at all, as where the dissent of one Bunker Hill, etc., Co. v. Schmelling, 24 C. C. A. 564, 79 Fed. 263; 22 Encye. of PI. & Pr. 1006. In Iowa by statute if the parties consent to a sealed verdict, the seaUng is equivalent to the rendition and recording in open court. See Dunbauld v. Thompson, 109 la. 199, 80 N. W. 324. — Ed. ^ The statement of facts and a part of the opinion are omitted. — Ed. 410 TRIAL shows that it is not unanimous, whether the judge should treat it as a mistrial and discharge the jury, or whether he may send them out to consider a verdict anew, is undetermined. A few collateral intimations and dicta seem to point to the former as the proper course, but we have no decision. Thus in Wolfran v. Eyster, 7 W. 38, supra, the court expressly limited the decision to " amending mere defects of form, not substantially changuig the findmg of the jury." And in Scott v. Scott, 110 Pa. 387, supra, where the asso- ciate judges entered a sealed verdict notwithstanding the dissent of one juror on a poll, this Court held it error, saying, " Of course had tlie learned president judge been present the verdict of ele^'en jurors would not have been entered on the record. Unless all the jurors were agreed he would have disdiarged them because of their disiigreement." The authorities cited by appellee from our criminal cases, Alexander v. Com., 105 Pa. 1, Moss v. Com., 107 Pa. 267, Hilands v. Com., Ill Pa. 1, and Com. v. Eisenhower, 181 Pa. 470, refer to separation of the jury durmg the trial, and do not touch the present inquiry. Nor is there any settled rule m other states to which we may conform. In New York the imperfect verdict is treated as a nullity for all purposes, and the jury may be sent out to dehberate agam: Douglass v. Tousey, 2 Wend. 352. In Ohio this cannot be done: Sutliff v. Gilbert, 8 Ohio, 405. It would seem to be a question of practice as to which there is no uniformity. We are thus left to consider the subject on historical and general principles, as to the origin and proper extent of the practice. At common law the jury were kept together from the time thej' were sworn, as is still the general rule m criminal cases involving life. After they had retired to consitler their verdict they were kept without food, drink, fire or light, until they agreed, and Bhickstone .says, " It has i;een hekl that if the jurors do not agree in their verdict before the judges are about to leave the town, though they are not to be threatened or imjirisoned, the judges are not bound to wait for them, but may carry them round the circuit from town to t(jwn in a cart ": 3 Blacks. Com. 370. From the maimer of this mention it is to be inferred that this latter practice was at least unusual in Blackstone's day, and he says expressly tlmt the depri- vation of food, fire and light was sui»ject to the indulgence of the <'ourt. In relief of the jury the privy verdict was n^cognized, though ncjt (jften resorted to. " A pri\y venhct is when the judge hatli left or adjourne(l tlu; court, and (he jury, Ix'ing agreed, in order to be delivered from tlieir confiueinent , obtain leave to deliver tlieir verdict privily to the judge out of court ; which privy KRAMER V. KISTER 411 verdict is of no force unless affirmed by a public verdict given openly in court; wherein the jury may if they please vary from the privy verdict. So that the privy verdict is indeed a mere nullity; and yet it is dangerous practice, allowing time for the parties to tamper with the jury, and therefore very seldom indulged ": 3 Blacks. Com. 377. With the prolongation of trials in the more complicated issues of modern times, and especially with the amelioration of manners, the treatment of jurors has gradually become less harsh, and changes of practice have been made in their relief. It is no longer the custom to keep them together and se- cluded during the whole trial, though I apprehend that the judge may do so in any case where public excitement or other excep- tional reason may make it advisable in the interest of the proper administration of justice to do so, and it is firmly established that in trials involving life he must do so, unless in exceptional and very limited cases of necessity. After the retirement of the jury to consider their verdict this indulgence terminates, and they are kept together and apart from others until verdict rendered. But if the adjournment of the court is to such time or under such cir- cumstances as seem likely to lead to serious inco2ivenience to the jurors, the practice of allowing them to seal a verdict grew up, as said by Gibson, C. J., in Dornick v. Reichenback, 10 S. & R. 84, supra, in place of the pri\y verdict. It had the same disadvantage of not being binding, and was therefore subject to the same dangers. By the recognized practice however, it is within the discretion of the judge, which does not require any agreement of parties or counsel, and may be exercised without their consent. But it is part of the growth of modem practice in relief of the hardships and inconvenience to which jurors are necessarily subjected, and cannot be carried beyond the pomt of reasonable safety to the admm- istration of justice. No jury can demand it as a right in any case, and in certain cases no judge can grant it as a matter of grace. The necessity that the verdict shall not only be fair and unbiased, but beyond reasonable apprehension of danger that it is otherwise, must be the controlling element in determinmg the limits of the convenience of the jurors and the discretion of the judge. When a juror dissents from a sealed verdict there is a necessarj- choice of evils, a mistrial or a verdict finally delivered under circum- stances that justly subject it to suspicion of coercion or improper influences. We are of opinion that the former is the lesser evil. If one juror can dissent, so may all change their view and render a new verdict exactly opposite to the one they first agreed upon and 412 TRLU. sealed. There could be no better illustration of the dangers of such a privilege than the present case. If the dissenting juror was honest in his declaration that he had not agreed to the first verdict except because he thought he was obliged to, then his agreement to the second without having been instructed as to his rights cannot be freed from a well founded appearance of coercion. If on the other hand the second verdict had been for the defendant, contrar\' to the first, the inference could hardly have been escaped that the change was produced by new evidence or information illegally acquired by the dissenting juror or by even more repre- hensible means. The only safe way out of such a situation is to treat it as a mistrial and discharge the jury. Judgment reversed and venire de novo awarded. SPENCER V. WILLIAMS, Admmistrator. Supreme Judiclvl Court of Massachusetts. 1893. [Reported 160 Massachusetts, 17.) Contract, against the administrator of the estate of Polly Crosby, upon a promissory note for S2,500, payable to the plaintiff, and signed " P. Crosby." The answer, among other defences, denied the genuineness of the signature to the note. Trial in the Superior Court, before Hopkins, J., who allowed a bill of excep- tions, in substance as follows. At the close of the trial, the judge of his o\mi motion submitted to the jury the following question: " Did Polly Crosby sign the note set out in the plaintiff's declaration ? " The case was given to the jurj' in the afternoon, and, before the jury had agreed on their verdict, the court was adjourned until the following morning, the judge instructing the officer in charge that, when the jur>^ agreed, they should seal their verdict and then be allowed to separate and render their verdict at the opening of the court on the following day. The jury agreed upon a verdict for the defendant stjon after the adjournment, and sealed up their verdict signed by the foreman. At the opening of the eourt on the following morning, the jury, having been separated over night, were reassenibied and presented the sealed packiige U) the court, and on the opening of the same it appeared that the verdiet was rendered for the defendant, but the Cjuestion al)<')ve stated had not been answered. SPENCER V. WILLIAMS 413 Before the verdict was declared, the judge instructed the jury that they should answer the question, and directed them to retire and make such answer. The jury thereupon retired, and after- wards returned into court with the verdict for the defendant and an answer to the question in the negative. The plaintiff, on the same day, moved to set aside the answer to the question, on the following grounds: "1. That, before said question had been answered by the jury, the jury separated and remained separate over night at their various homes. 2. That before the foreman of the jury had signed said question and answer in the negative, the jury sepa- rated and remained separate at their several homes over night. 3. That said question was returned into court unanswered, and before said question was answered, and more than twelve hours after said separation, the jury, as required by the court, reassem- bled in their room, and that then for the first time said question was answered by the jury and signed by the foreman." At the hearing on the motion, the plaintiff asked the judge to rule, as matter of law, that the answer to the question could not be maintained, and to grant the motion. The judge declined so to rule, and overruled the motion; and the plaintiff alleged exceptions. Barker, J. The plaintiff contends that upon a jury trial the presiding justice has no power to receive the answer of the jury to a question which he has required them to answer in connection with their verdict, if the jury has been allowed to separate without reducing to writing their answer to the question. One of the most important reasons for requiring juries to remain together after the cause is finally committed to them until they have agreed upon their verdict is, that they may reach their conclusions only upon the law and the evidence given them, uninfluenced by other matters. Distinct questions submitted to them are in connection with their verdict, and of such a nature that the jury cannot prop- erly arrive at a verdict except upon consideration and determina- tion of the specific questions. When, therefore, as in the case at bar, the verdict has been arrived at, and reduced to wTiting and signed by the foreman, before the separation of the jun,% it is to be in- ferred that they have before their separation considered the specific questions submitted, and arrived at an agreement as to the answer to be given. If by mistake or inadvertence the answer has not been reduced to writing and signed before the separation, we think it is still within the power of the court to require the jury to 414 TRIAL answer the question, and to receive and record the answer in con- nection with the verchct. As stated m Mason v. Massii. 122 Mass. 477, 480. •' It is a well settleil anil long established practice that a jur>', when thoy hnw returned a finding that is incomplete and defective. nii\y he sent out again Ln order to correct the error, even though they had separated after their first findmg before they came into court." An omission to assess damages was thus properly cured in the case cited, and also in Chapman v. Coffin, 14 Cira>', 454. In the former case the projx'r assessment of damages required only the arithmetical computation of the amount of a note and mterest, but in the latter the foreman said to the court that before they first separatetl they concluded that the damages would be the amount of the plaintiff's accomit and interest, which was the correct basis for the asses.sment of damages. We are therefore of opinion that m the case at bar there were good grounds to infer that the answer of the jury to the specific question luid ])een determined upon by the jury in comiection with arriving at their verdict and before their separation, and that imder the circumstances, upon the motion for a new trial, the presiding justice was not required to rule as requested by the plaintifT. We assume that, if he hatl had reason to suppose that the jur>- had not considered the question and determined how to answer it l)efore their separation, the presiding justice would not have again sent them out with instructions to make their answer. Exceptions overruled.^ COGAN V. EBDEN and Another. King's Bench. 1757. [Reported 1 Burrow, 383.1 On a motion (madt- the ISth instant), to set aside a verdict as being given in by the foreman, contrary to the opinion and inten- tion of eight of the jury. It ai)peured that tiie defendant justified under a right Hoc Clark v. Sidway, 142 U. S. 0>S2, li") L. oTnen, confirmed (as they held it in effect to be) by the foreman's declming to make any affidavit at all : especially as the judge's notes shewed the weight of the evidence to have been for the plaintiff as to this latter issue. And Lord JVIansfield and Mr. Just. Denison thought that as it was a mere slip, there might be some method of rectifying the verdict according to the truth of the case; from the judge's notes, if they were sufficiently particular; without sending the issue to be tried over again at a great expence. And the case of Newcombe v. Green, in 2 Strange 1197, was mentioned, where the postea was amended by the Judge's notes. And Lord Mansfield said that, at least, they could set aside the verdict without costs. But difficulties occurring how the costs would be in such case, as one issue was still found for, and was in truth clearly for the defendant; therefore Cur. advis\ And now Lord Mansfield seeing Mr. Morton in court, who was concerned for the plaintiff, and had (on his behalf) moved to set aside the verdict, took occasion to mention this case, and said they had thought of it; and he had talked with his brother Wilmot 416 TRL\L too about it: but, however, he was not now going to give any opinion; but only to propose what seemed to him the most proper method of commg at it. The case of Xewcombe v. Green itself, is not applicable to this case. But there is another case of Mayo v. Archer, in 1 Strange 514, 515; where the question was, " Whether a farmer who bought and sold potatoes could be a bankrupt ": and the special verdict ilitl not set forth the quantities he had bought and sold; though tliey were proved at the trial. The court did not there award a venire facias de novo; but amended the special verdict in that respect; which case is more applicable to the present case than tliat which was cited: For here they ordered the special verdict to be amended; though the plaintiff's motion was only " that a venire facias de novo might be awarded." But another case has been mentioned to me, which is applicable to the principle of this case; though not like the particular fact. It is that of Dayrell v. Bridge, Tr. 22 G. 2. B. R. trespass for cutting down an oak-tree. The defendant pleaded several pleas; one of which was, " Not Guilty." At the trial, a general verdict was taken down, and so entered. And the court rectified the verdict, by expunging the finding on all but the " Not Guilty "; it appear- ing that nothing was in question (at the trial) but " whether the place where the tree stood was parcel of the manor or not." In the case of Newcombe v. Green, several cases were cited on the same subject : though the case itself is not the present case. If the court sets the matter right, they should proceed accord- ing to the whole truth of the case. The judge who tried the cause agrees to the fact disclosed in the affida\'it of the eight jurj'^men: whereas your first affidavit on which the rule was made, was an affidavit of only four of them. Therefore what I would propose is, tiiat you should make your motion, and have a rule to shew cause, why, upon reading the affidavits of these no iiiipcachmcnt of the \'<'rdict or of the integrity, intelligence or action of the jiir>-. The jury in furnishing i)rof)f of the clerical mistake would st.and by their aKre<'- rnent and aid in giving effect to their deliberations and deti-r- minations. In the cjise now hefore ns it is merely sought to prove by the allidavits of the jurors that by an accident, without inten- tional fault, the verdict of the jury was erroneously delivered to DALRYMPLE V. WILLIAMS 419 and received by the clerk. I am unable to see in this an infringe- ment of the rule forbidding jurors to impeach their verdicts; neither can I perceive serious danger in any practice that may grow up under such an exception to the general rule. Applications of this character \vill be rare, will be made before the judge presid- ing at the trial and while the whole subject is fresh in the minds of all, and never will be granted except in cases free from reasonable doubt. Something must always be trusted to the discretion of the judge. Discretion caimot be withheld in all cases because it may sometimes be abused. We are not without precedent to justify the reception of and acting upon the affidavits of the jurors in this case. In Cogan v. Ebden (1 Burr., 383), a verdict wrongly delivered by the foreman was set right upon the affidavit of eight of the jury. Sargent v. (5 Cow., 106), went farther than the court was asked to go here. Affidavits of the jury were received to show that they were misled and adopted a principle in estimat- ing damages not allowed by law. This was defended and approved in Ex parte Caykendoll (supra). In Jackson v. Dickenson (15 J. R., 309), affidavits of jurors were held admissible to show that a mistake had been made in taking their verdict, and that it was entered different from what was intended. The court draw a distinction between what transpires while the jury are deliberating on their verdict and what takes place in open court in returning their verdict, holding the state- ments of jurors admissible as to the latter but not as to the former. Roberts v. Hughes (7 ]\I. & W., 399), is hke the last case quoted, and affidavits of the jurors were received as to what took place in open court on the delivery of the verdict, to correct it. See, also, Prussel V. Knowles, 4 How. [Miss.], 90. The affida\'its were admissible, and they made a clear case for correcting the entry. It would have been unjust to send the parties down to another trial, and as the defendant was not in fault there was no reason for charging him with the costs either of the motion or of the trial. The order of the General Term must be reversed and that of the Special Term affirmed, with costs of this appeal. All concur; except Folger, J., dissenting. Ordered accordingly.^ » See Peters v. Fogarty, 55 N. J. L. 386, 26 Atl. 855; Wolf gram v. Schoepke, 123 Wis. 19, 100 N. W. 1054, 3 Ann. Cas. 398. Compare Randall v. Peerless, etc., Co., 212 Mass. 352, 99 N. E. 221. But see Chevallier i'. Dyas, 28 La. Ann. 359. — Ed. 420 TRIAL MURDOCK V. SUMNER. SuPBEME Judicial Court of Massachusetts. 1839. [Reported 22 Pickering, 156.] Trover for divers goods attached by the defendant as sheriff of Suffolk. A verdict had been found for the plaintiff, which the defendant now moved to set aside, upon the affidavits of the jurors, tliat in assessing the damages they proceeded untler a mistake. Shaw, C. J. This is an application by the defendant, to set aside the verdict and grant a new trial, on the affidavit of the jurors, that in the assessment of damages they made a mistake. The mistake alleged was this, that in estimating the value of the goods which were the subject of controversy, one witness only was examined, who testified as to the quality, condition and cost of the goods, and to his opinion that they were worth the cost ; that the jury believed that they were bound by this ojiinion, whereas if they had felt at liljerty to exercise their own judgment, they would have estimated them at a lower rate. Affidavits of jurors are to be received with great caution. The rule is inflexible, that they will not be received to show misconduct or irregularity on the part of the jury or any of them. And the general rule is, that affidavits of jurors will not be received to prove any mistake of the evidence or misapprehension of the law, on the part of the jury. Different jurors, according to their diff- erent degrees of intelligence, of attention and habits of thought, may entertain different views of the evidence, and of the instruc- tions of the court in point of law. Bn{ the verdict, in which they all concur, nmst l)e the Ix'st evidence of their l)eliof, l)olh as to the fact and the law, and therefore must be taken to be conclusive. Jackson v. Williamson, 2 T. R. 281; Owen v. Warburton, 4 Bos. & Pul. 320; Ex parte CaykendoU, (> Cowen, 53; Napier v. Daniel, 3 13ingh. New Ca-ses, 77. Tiie rule is founded upon a consideration of the great danger, practically, of listciuu^ to suggestions of mis- ai)i)reheiision and mistake in the juries. The ('(jurt ure not prepared t(j siiy th;it tliis is a rule without exception; there may Ix" cases of manifest mistake in coniputation, or other (jbvious error, where there are full means of detecting and c(jrreffing it, where it wouM be proper to interfere. But in the pr(!.sent case, the evidrncf having bem heard de bene ease, the Court are of opinion, that tlie verdict ouglit not to be set MURDOCK V. SUMNER 421 aside. It was an estimate of the value of goods. The facts were stated by the witness, and also his opinion. But the jurors had full opportunity to exercise their own judgment on the facts, and form their own opinion of the value. If indeed any juror knew any fact bearing upon the subject, such as the state and condition of the particular parcel of goods, especially if it differed from the facts testified, he should have stated it and testified to it in open court, that the court might judge of the competenc}^ of the evi- dence, that the parties might fully examine the witness, and that the counsel and court might have under their consideration the whole of the evidence upon which the verdict is formed. It is not suggested that the jury acted upon such facts. But the jury may properly exercise their own judgment and apply their own knowl- edge and experience in regard to the general subject of inquiry. In the present case, the jury were not bound by the opinion of the witness; they might have taken the facts testified by him, as to the cost, quality and condition of the goods, and come to a dif- ferent opinion as to their value. It is said that the jury understood the court to instruct them, that they must go by the testimony. This, as a general proposi- tion, was true and correct. If there was any danger that the jury would be misled by the generality of this direction, the counsel should have requested the judge to modify it and make it more precise, as applicable to the evidence in the particular case, by informing the jury that they were not bound by the opinions of the witness, but only by such facts as upon the testimony they considered proved, the jury exercising their own judgment upon the credit of the witness, and the weight of the evidence. Besides, if the defendant considered the value of the goods an important point, it was open to him to offer other and more satisfactory evidence upon that point; but he gave no evidence on the subject, relying on that given by the plaintiff. Motion dismissed} * Compare Minot v. Boston, 201 Mass. 10, 86 N. E. 783, 25 L. R. A. (n. s.), 311. — Ed. 422 TRIAL PETRIE and Another, Rxecutors of KEEBLE v. HANNAY, Baronet, King's Bench. 1790. [Reported 3 Term Reports, 659.] This was an action for money paid by the plaintiffs, as executors, and also for money paid by the testator, to the use of the defendant; for money had and received by the defendant to the use of the plaintiffs, as executors; and for money had and received to the use of the testator, in separate counts; to which there were two pleas, the general issue, and the statute of limitations. A verdict having been found for the plaintiffs generally on the first issue, and no notice taken of the last, the defendant brought a wTit of error in the House of Lords, on two grounds; that no verdict was given on the second plea; and that the two separate demands could not be joined in one action; there was a joinder in error, and a day was appointed for the argument in the House of Ix)rds. The plaintiffs then obtained a rule to shew cause why they should not be at liberty to amend according to the judge's notes, by adding a verdict for them on the second plea, and by entering the verdict on the counts for money paid by the executors, and for money had and received to their use. Erskine and Wood now shewed cause; and said that though perhaps the court would have had no difficulty in i^c^mitting the amendment, if the application had been made sooner, they hoped that such an indulgence would not be granted now, as the de- fendant had brought a writ of error on these objections, and the plaintiffs th(*ms<'lves had joined in error. Bearcroft and lius.stU, in sujjport of the rule, observed that the record still remained in this court, tiirough a transcript of it v,'SiK sent into the House (^f Ivords, and therefore there was some- thing here In' which the amendment could be made; and that in such cases it was almost a matter (jf course to permit such an amendment on payment of costs. JiiLLKit, J., said that such aniendnK-nts had Ixcn fre(|uently permitted. The first is merely a slip of the clerk, in not entering up the verdict for the plaintiffs on the second j)lea. And jus to th«' wcond, he said, he was cle;irly of opinion that it was not error; for though an executor, when suing f(tr a debt due to the testator, could not join a debt due U) hiin.self in his own right; yet it was cox V. HIGH POINT, RANDLEMAN & SOUTHERN R. R. CO. 423 the constant practice to join in the same declaration several counts for money had and received by the defendant to the use of the testator, and to the use of the executor, as such. Per curiam, Rule absolute} COX V. HIGH POINT, RANDLEMAN & SOUTHERN RAILROAD COMPANY. Supreme Court of North Carolina. 1908. [Reported 149 North Carolina, 86.] Clark, C. J. Action for damages for wrongful death. In response to the issue as to damages, the jury responded " five thousand." The court entered judgment for " five thousand dollars." This was not error. Damages are necessarily found in money values. The only words that could be entered after " five thousand " were either " dollars " or " cents," and no one ever says " five thousand cents." The U. S. Compiled Statutes, sec. 3563, provides that the " dollar," not " cent," shall be the unit of value. Besides, the verdict, like the charge, must be construed with reference to the trial. The complaint was for thirty thousand dollars. The evidence as to damages was expressed in dollars. The Judge charged the jury that the plaintiff's contention was that he was entitled to recover " a certain amount of damages; I mean a certain amount of compensation, so many dollars to compensate for the value of his life." The evidence for plaintiff's intestate was that his income was $1,000 per year. The table of expectancy showed 28 9-10 years. The judge submitted to the jury the proper rule for damages and also left to them the defend- ant's contention for reductions. The whole controversy before the jury on this issue was in terms of " dollars," not " cents," and the verdict must be construed in that connection. In Stevens v. Smith, 15 N. C, 292, where the plaintiff sued on a note for "four hundred and forty-seven dollars and sixty-six cents," this court held (Gaston, J.) that it was not a variance that by the instrument put in evidence the defendant promised to pay " four hundred and forty-seven and sixty-six cents," saying that the note being for the payment of money, it was payable in our currency, and " dollars " were meant, unless " cents " were named, because 1 Clark t;. Lamb, 8 Pick. (Mass.), 415, 19 Am. Dec. 332, accord. See Murphy v. Stewart, 2 How. (U. S.), 2(j3. — Ed. 424 TRIAL the Act of Congress, 2 April. 1792 (now U. S. Compiled Statutes, sec. 3563), makes the dollar the unit: that all other coins were recognized as multiples or fractional parts thereof, aiid that the same was true of our State, Laws 1809, ch. 775, addmg, " this note could not be understood by the parties, by a court, or by a jury, in any other sense than as stipulatmg for the payment of four hundred and fortj'-seven dollars (or units) and sixty-six cents (or hunilrt^Ith parts thereof)." This case is cited and approved in State v. Keeter, 80 N. C, 474. " The omission of the word ' dollars ' in a verdict for a money recover}' does not affect the validity of the judgment, when it is manifest tliat dollars were meant, though it would be more regular to amend the verdict before judgment." Hopkins v. Orr, 1 10 U. S., 513; Parks v. Turner, 12 How., 39; Beall v. Territory, 1 N. M., 519; R. R. V. Fink, 4 Tex. Civ. App., 209. " From the earliest period the courts have freely exercised the power of amending verdicts so as to correct manifest errors, both of form and of sub- stance, to make them conform to the intention of the jurj-," 2 Thompson Trials, sec. 2642, and cases cited. Of course, if the verdict had been returned in open court, the Judge should and doubtless would have called the omission of the word " dollars " to the attention of the jurj'. State v. Godwin, 138 X. C, 585. But we learn that, by consent, the verdict was rendered to the Clerk. If the matter had been called to the atten- tion of the Judge, on the reassembling of the Court, he would have called the jur>' together. Petty r. Rou.s.seau, 94 N. C, 362, and ca.scs there cited. But they may have dispersed. At any rate the matter does not appear to have been called to the attention of the Judge by exception in apt time, nor inde<^d at all. The case is presented here simply by the appeal and a.ssignment of error, l)oth of which could have been entered at any time within ten days after court had adjourned. In view of the pleadings, the evidence, the nature of the case, the contentions of the parties as arrayed by the Judge in his charge, his instructions to the jur>' and the absence of any exception in u[)t time, it would be " .sticking in the l)ark," indeed, U) hold that the verdict was not meant to be expre.s.sed m dollars. ' Sec a nf)to to the priticipnl ni.sc in 35 L. R. A. (n. s.), (W3. Compare Huron v. Schepnin, IS.'j III. 122, rA\ N. Iv 1123; TluuneH Ltnin & Trust Co. v. iJcville, 1(K) Uul. MY.}; Miller v. Morniin, \ V.i Miuw. 2.'), 8 N. E. 644; Hurst v. \V«-l.Mfer MfK. fo., IJs \Vi-- :!J2. 107 X. \V. r.(i(i. — Ed. BUTCHER V. METTS 425 BUTCHER, Executor of BUTCHER, v. METTS. District Court for the City and County of Philadelphia. 1836. [Reported 1 Miles, 153.] The facts of the case were these. The only count in the declaration was indebitatus assumpsit for money had and received by the defendant for the plaintiff's use. The evidence received on the trial was, that Job Butcher, the plaintiff's testator, by indenture dated in August, 1787, conveyed a lot of ground to Adam Metts in fee, reserving thereout a rent charge of 12 dollars 48 cents, payable annually by Adam Metts, his heirs and assigns, forever. In 1797 Adam Metts died intestate, leaving a \vidow, Barbara Metts, and several children, one of whom was George Metts, the defendant. Barbara Metts, with some, if not all her children, continued to reside in a house erected on this lot after her husband's decease, and imtil the year 1827, when by virtue of proceedings agreeably to the act of assembly made for such purposes, a public street, called Juliana street, was extended from Buttonwood street to Green street; and this lot lying in its direct course, a large portion of the ground, including all the build- ings erected upon the whole lot at that time, was taken for that street. Damages appear to have been claimed by Barbara Metts for the ground thus appropriated to public use, and the jury appointed by the quarter sessions awarded to her 1400 dollars, without designating in whose right they were given, or whether to her own use, or the use of her children or of other persons. This money was paid under an order of the quarter sessions, in favour of Barbara Metts, to the defendant, who gave a receipt signed " George Metts, for Barbara ]Metts." Barbara Metts died some time afterwards, and tlie defendant administered on her estate, and on the 11th of November 1831 filed his account in the register's office, in which he charged himself with 1191 dollars as damages awarded for opening Juliana street, leaving 209 dollars unaccounted for. This latter amount, being about the value of the rent charge reserved to his testator, the plaintiff alleged, had been received by the defendant from the county treasurer's office for his use, and some evidence was given of admissions by the defend- ant that he so considered it. It appeared also that the portion of the lot not taken for Juliana street consisted of two pieces, each of a triangular shape. 426 TRIAL The jun' rendered a verdict in the following words: " The jury agree uix)n a verdict in favour of the plaintiff for 308 dollars 50 cents, conditioned that a release in fee be conveyed on the remain- ing property, to George Metts (consisting of two triangles) for the estate of Adam Metts." Within the four days allowed by the rule of court for motions for new trial, and in arrest of judgment, the plaintiff filed in court a release by the plaintiff and wife, of the part of the lot supposed to have been in the contemplation of the jury. The defendant moved in arrest of judgment, and assigned two reasons: "1. Because the verdict is illegal. 2. Because it is void for uncertainty." Stroud, J. In England, and such of our sister states as have followed her example in the establishment of a court of equity distinct from a court of common law, the only question upon this verdict would be, whether the part of the finding of the jury beyond the mere assessment of damages, could be rejected as surplusage. It is manifest, however, that the verdict will not admit of this con.struction. The finding is not of two distinct parts. They are made to depend on each other. The first part is not found except upon the condition which is expressed in what follows. To pre- serve the intention of the jury, the whole must be retained. Wit- man V. Ely, 4 Serg. & Rawle, 264. Regarded then as a conditional verdict, can judgment be ren- dered upon it in our courts, where, from the want of a court of chancery, we are compelled to administer, as well as we may, a system of jurisprudence which combines the rules of law and equity together. It is readily conceded that, with us, actions may be grounded upon rights merely equitable, as in Lang v. Keppele, I Binn. 579; and we admit defences of a similar character. Pollard V. Schaeffer, 1 Dall. 211; Jordan v. Cooper, 3 Serg. & Rawle 57S. The specific execution of contracts may be enforced, also, through the medium of a conditional verdict in the action of ejectment; and where articles of agreement exist in covenant or debt. Cases abound in support of this doctrine. But not to pursue the general subject beyond the exigences of the case under consideration, it may l)e stated, as a general principle, that where the form of action is ct contmdu, and the plaintiff founds himself upon a right ni(r(l\- <-(iuilal)le, his declaration should be a.'t forth distinctly the H[)«'<'i;il cirfumstances upon which the e(|uity he claims is supposed to arise. Jordan i'. Cooper, 3 Serg. tV: H:iwlc 57s, 570, 5S1; Wit- COLLINS V. WHITESIDE 427 man v. Ely, 4 Serg. & Rawle 266, 267; Reichart v. Beidleman, 17 Serg. & Rawle 43. The plaintiff here has not adopted this course. His declaration is not special. It does not profess to be founded upon an express contract; it is simply indebitatus ass^umpsit on a common money count. The ground upon which he mainly relied on the trial, was, that the money claimed by him had been received by the defend- ant as his agent, or on his behalf, impliedly, under the decree of the court of quarter sessions. As the motion before us is not for a new trial, but merely in arrest of judgment, it is unnecessary to express any opinion upon the character and strength of this pretension. We are confined to the examination whether the verdict which has been given, viewed in reference to the declaration, will warrant a judgment. And we are decidedly of opinion it will not. The finding of the jury should have been absolute. The issue joined between the parties forbids any other. Were it even conceded that the evidence received on the trial would justify the conditional verdict which has been found, in what manner would the supreme court become possessed of this; and how, otherwise, could revision take place ? If the plaintiff supposes the special circumstances which were dis- closed on the trial are such as to constitute an equitable right in him, sufficient to sustain an action, let him adapt his declaration to the suggestions which have been made. A demurrer will then present the true question fairly before the court, and save the necessity of a jury trial altogether. A course similar to this is stated to be correct where the defence is purely equitable; Robin- son V. Eldridge, 10 Serg. & Rawle 142; and the principle applies with equal fitness to declarations on such rights. Judgment arrested. COLLINS V. WHITESIDE. Court of Errors and Appeals of New Jersey. 1908. [Reported 75 New Jersey Law, 865.] Trench ARD, J. This is an action upon contract brought in the Hudson County Circuit Court. Reduced to narrative form the essential allegations of the dec- laration are that in 1893 the defendant, Whiteside, was the owner of a race horse and made an agreement with the plaintiff, Collins, 428 TRIAL that the plaintiff should enter the horse in races in which he was eligible to be run at certain specified race tracks during the racing season of 1893, and should pay for the benefit of the defendant all entrance fees and forfeits charged by the racmg associations for such entering, the defendant agreeing to repay the plaintiff; that the plaintift" accordingly paid certain moneys and the defendant did not repay the same. The defendant pleaded — first, the general issue; secondly, that " the allegeil agreement sued on was m contravention of and in violation of the statute "; thirdly, the statute of limitations. At the trial certain questions in writing were submitted by the judge to the jury anil were answered favorably to the contention of the plaintiff as to the matters of fact which they concerned. So far as the postea discloses, no general verdict was rendered for either party. The main object of special questions submitted by a trial judge to a jury has been variously stated as being to bring out the various facts separately in order to enal)le the court to apply the law correctly, and to guard against any misapplication of the law by the jur\'; to obtain an explanation of the general verdict; to test the correctness of the general verdict; to correct wrong inferences from the facts which the jury finds to exist; to confine juries within their proper sphere, and to enable a party more effectually to secure a review of findings of fact. See 20 Encycl. PI. &: Pr. 299, and cases there collected. A special finding of facts in response to interrogatories is essen- tially ditTercnt from a speciiil verdict, tliough it partakes somewhat of the same nature. A special finding is a res]K)nse to a single infi'iiry directed to a particular fact necessary to tiie finding of a general verdict, while a sjjecial verdict is a finding of all the facts proved or admitted at the trial. The office of a special finding is that if, uniler the law, the j)arliciilar facts are inconsistent with the general verdict, the former shall ('(jntrt)l tiie latter. Accordingly, special findings must always be coupled witii a general verdict. See 20 Encycl. PI. & Pr. 300, and cases there cited. Obviously, there being no general verdict, the present case could not be treated as one of special finding. The learned trial judge treated it as a special verdict and ordered judgment for the defemlant on the theory th.at the contract was one prohibited by section 1 of the act to i)re\-eiit gaining. Oen. Stat. ]K ](\(U). COLLINS V. WHITESIDE 429 The plaintiff's writ of error brings up for review the propriety of that judgment. Upon an inspection of the circuit record, it may well be doubted whether the verdict in question is in the form of a special verdict. But since both parties have, without question, so considered it, it will be so treated. Behring v. Somerville, 34 Vroom, 568. Considered as such, it furnishes no support for the judgment. In determining what judgment may be properly entered upon a special verdict, nothing can be looked at by the court except the pleadings and the postea. Seabright v. Central Railroad Co., 43 Vroom, 8; 2 Arch. Pr. 215; 2 Tidd, 598. It has been held in this court that in dealing with a special verdict, the court draws conclusions of law from facts found, but does not draw conclusions of fact from evidence. The material facts relied on must be expressly found. Behring v. Somerville, supra. See, also, Bouvier v. Baltimore and New York Railroad Co., 36 Vroom, 313. An examination of the pleadings and circuit record discloses that the only material facts found by the jury were — first, that " the defendant authorized the plamtiff to enter the horse ' El- beron ' in any scheduled races in which the horse was eligible and in which the plaintiff thought the horse had a chance to win a stake"; second, that "the defendant authorized the plaintiff to advance entry fees or forfeit fees for the account of the defendant," and third, that " such fees were paid by the plaintiff." Section 1 of the act to prevent gaming (Gen. Stat., p. 1606), which, in the view of the trial judge, required a judgment for the defendant, provides " that all wagers, bets or stakes made to de- pend upon any race or game, or upon any gaming by lot or chance, or upon any lot, chance, casualty or unknowTi or contingent event, shall be unlawful." But it will be noticed that the special verdict does not show either of the material facts that a wager or bet was made upon a race, or that the horse ran for a stake depending on the event of the race. The fact that the plaintiff was authorized " to enter the horse in any scheduled races in which the plaintiff thought he had a chance to win a stake " does not show that the stake depended on the event of the race or even that there was a stake to be won. The fact that the moneys paid by the plaintiff were " entr>' fees or forfeit fees " is not alone sufficient to bring him within the condem- nation of section 55 of the Crimes act then in force (Gen. Stat., p. 1060), for by the proviso of that section it does not apply to fairs 430 TRIAL or exhibitions of any agricultural or other incorporated society, nor of section 224 of the siime act (Gen. Stat., p. 1090), because that section relates only to contributions to make up a purse. It will be obser\'ed that the material facts that the entrj' or forfeit fees went to make up the stake, and that the races were not at a fair or exhibition of an agricultural or other incorporated society, do not api>ear in the special verdict. Doubtless closer analysis would disclose that other essentials of the defendant's case are wantmg in the facts found. But it is sufficient to say that some of the material facts are not found. The defendant is not entitled to judgment on the special verdict, nor shoukl judgment be given for the jjlaintiff. In such cases the proper practice is to award a venire de novo. Bouvier v. Baltimore and New York Railroad Co., supra. Accordingly, the judgment below must be reversed and a venire de novo awarded. For affirmance — None. HODGES v. EASTON. Supreme Court of the United States. 1882. [Reported 106 United States, 408.] Harlan, J. This was a suit by Easton and Bigelow against Hodges and Smith to recover damages for the alleged conversion of certain wheat, stored, in separate bins, in the warehouse of William H. \'alleau, in Decorah, Iowa. The complaint contains two counts. The first proceeds upon the gnjund that the wheat, when so converteil, was the j^roperty of the phiiiitifTs. The .second avers that, during the winter and spring of 1876, the First National Hank of Dccorali, Iowa, dis- coimtcHJ notes and drafts for, and loaned money to, siiid \'alleau, upequest of certain slaves, it was essential to a recovery, at law, that the a.s.sent of the executor to th<' legacy should be proved. This court, sfx'aking by Mr. Chief Justice Alarshall, suiil: " Al- though in the opinion of the court there was sufficient evidence in the siM-cial verdict from which the jury might have found the fact, yet they have not found it, and the court could not, upon a .sjK'cial verdict, int, 44 N. W. 777. Tho prinnipiil cnae Ih diHrussed in Slocum v. New Life IriH. Co., 228 U. S. .3(54, :}H4, 424, .57 L. cd. H7U, H:? S. Ct. .523. — Ed. RICHARDSON V. WEARE 435 be for the defendants, by request of the defendants' counsel the jury were directed to answer this question: Did the injury to the plaintiff occur in consequence of any neglect or fault on his part ? A general verdict was returned for the plaintiff, and the special question was answered in the affirmative. The court ordered judgment for the defendants, and the plaintiff excepted. Allen, J. It was decided, in Walker v. Sawj-er, 13 N. H. 191, 196, 197, that, in a case tried on the general issue, the court would not submit a particular question of fact to be found and returned by their verdict, without the consent of the parties. But when it is proposed to submit specific questions to the jury, it will be taken for granted that the parties assent, unless they object at the time, and before the jury retires. Willard v. Stevens, 24 N. H. 271, 277; Allen V. Aldrich, 29 N. H. 63. And later, in Barstow v. Sprague, 40 N. H. 27, 33, it has been decided that the court, against the objection of either or both parties, may properly direct a jury to return, with a general verdict, answers to specific questions sub- mitted to them. No objection having been taken, at the time, to the submission of the special question to the jur>^ in this case, the plaintiff must be understood to have consented, and the objection after verdict comes too late. The special finding of fact was conclusive (Walker v. Sawyer, supra, 196, 197, Willard v. Stevens, supra, 277), and, being a material fact upon which the general result depends, it must con- trol the general verdict. The court having given specific and cor- rect instructions to the jury upon the subject, and that their general verdict must be for the defendants, if they should answer the question in the affirmative, the plaintiff could not have been prejudiced nor the jury embarrassed by the question. Johnson v. Haverhill, 35 N. H. 74, 87. Upon the answer to the special ques- tion, the defendants were entitled to a general verdict and judg- ment. Exceptions overruled. Stanley, J., did not sit: the others concurred. [Stephen, Pleading (Williston's edition), *99-*102.] A more common, because more convenient, course than this [demurring to the evidence], to determine the legal effect of the evi- dence, is, to obtain from the jury a special verdict, in lieu of that general one, of which the form has been already described. For the jury have an option, instead of finding the negative or affirmative of the issue, as in a general verdict, to find all the fact^ of the case as disclosed upon the evidence before them, and, after so setting them 436 TRIAL forth, to conclude to the follo\\'mg effect: " that they are ignorant, in point of law. on which side they ought, upon these facts, to fuid tlie issue; that if, upon tiie Aviiole matter, the court shall be of opinion that the issue is proved for the i)laintiil", they find for the plaintiff accordingly, antl assess the damage at such a sum, &c.; but if the court are of an opposite opinion, then vice versa." This form of finding is called a special verdict. However, as on a general verdict, the jur>' do not themselves actually frame the jwstea, so they have, m fact, nothmg to tlo with the formal preparation of the special verdict. When it is agreed that a verdict of that kind is to be given, the jur>' merely declare their opmion as to iuiy fact re- maining in doubt; and then the verdict is adjusted without their further interference. It is settled, under the correction of the judge, by the comisel and attoniies on either side, according to the state of facts as found by the jury, with respect to all particulars on which they have delivered an opinion; and with respect to other particulars, according to the state of facts which it is agreed that they ought to find upon the evidence before them. The special verdict, when its form is thus settled, is, together vnth the whole proceedings on the trial, then entered on record; and the question of law arishig on the facts found, is argued before the court in bank, and decided by that court, as in case of demurrer. If the party be dissatisfied with their decision, he may afterwards resort to a court of error. It is to be observed, that it is a matter entirely in the option of the jurif, whether their verdict shall l)e general or s])ecial. The party objecting in point of law, camiot therefore insist on having a special verdict, and may consequently be driven to demur to the evidence — at least if he wishes to put the objection 07i record, without which no writ of error can be brought, nor the decision of a court of enor obtained. But if the object be merely to obtain the decision of the court in bank, and it is not wished to put the legal (juestion on record, in a view to a writ of error, then the more conuuon (because the cheaper and shorter course) is neither to take a special verdict, nor demur to the evidence, but to take a generni virdict, subject f:is the I)hra.se is) to a special case; that is, to a written statement of all the facts of the case, draANTi up for the opinion of the court in bank, by the counsel and attoniies on either side, under correction of the judge at nisi prius, according to the priiicijile of a special verdict, a.s above explain*^!. The party for w honi tlie general verdict is so given, is of course not entitled to judgiiu'nt, till the court in bank hurt de<'ided on the si)ecial case; and, according to the result of THAYER ON EVIDENCE 437 that decision, the verdict is ultimately entered either for him or his adversary. A special case is not (like a special verdict) entered on record; and consequently a writ of error cannot be brought on this decision.^ [Thayer, Preliminary Treatise on Evidence at the Common Law, pp. 217-219.] The judges often compelled special verdicts. It was the old law that a jury, if it chose to run the risk of a mistake, and so of the punishment by attaint, always might find a general verdict. But the judges exerted pressure to secure special verdicts; sometimes they ordered them, and enforced the instruction by threats, by punishing the jury, and by giving a new trial. As a matter of history, we know that the jury^, on the whole, successfully stood out against these attempts; and that in most cases their right was acknowledged. But now it is remarkable how judges and legis- latures in this country are unconsciously travelling back towards the old result of controlling the jury, by requiring special verdicts and answers to specific questions. Logic and neatness of legal theory have always called loud, at least in recent centuries, for special verdicts, so that the true significance of ascertained facts might be ascertained and declared by the one tribunal fitted to do this finally and with authority. But considerations of policy have called louder for leaving to the jury a freer hand. The working out of the jury system has never been shaped merely by legal or theoretical considerations. That body always represented the people, and came to stand as the guardian of their liberties; so that whether the court or the jury should decide a point could not be settled on merely legal grounds; it was a question deeply tinged with political considerations. While it would always have been desirable, from a legal point of view, to require from the jury special verdicts and answers to special questions, that course would have given more power to the king and less to the people. It is one of the eccentricities of legal histor>' that we, in this coun- try, while exalting in some ways the relative function of the jury far beyond all English precedent, are yet, in some parts of the country, greatly cutting do^Mi their powers in the particular here referred to. Doubtless the judges at conunon law have always exercised a limited power of questioning the jury about their verdicts. But the general, common-law right of the jurj- to refuse to answer such questions and to give a short, general verdict has been acknowledged. » See Traflet v. Empire Life Ins. Co., 64 N. J. L. 387, 46 Atl. 204. —Ed. 438 TRIAL [Form of General Verdict for Plaintiff.] ^ In the Court of the County of , State of A. B.. plaintiff, 1 agains^t > Verdict. C. D., defendant. J We, the jury in the above entitled cause, find for the plaintifif in the sum of dollars and cents. X. Y., Foreman. [Form of Special Verdict.] ^ (Title of cause.) We, the jurj' in the above entitled cause, do find the facts m the said cause to be as follows: (The fads found are stated as in a pleading). If upon these facts the law is with the plaintiff, then we find for the plaintiff, and assess his damages at dollars and cents. And if the law is with the defendant, then we find for the defendant. X. Y., Foreman. ^ For the old English form of postea, see Tidd, Forms, Sth ed., 315. — Ed. * See, for the old EugUsh form of poslea on special verdict, Tidd, Forms, Sth ed., 325. — Ed. CHAPTER VIII. MOTION FOR NEW TRIAL. GIBNEY V. ST. LOUIS TRANSIT COMPANY. Supreme Court of Missouri. 1907. [Reported 204 Missouri, 704.] Burgess, J.^ This is an action for damages for personal injuries alleged to have been sustained by plaintiff on the 13th day of June, 1902, by being thrown from defendant's car, by reason of its premature start, whilst plaintiff was in the act of alighting there- from at the corner of Taylor and Washington avenues in the city of St. Louis. The action was instituted in the circuit court of the city of St. Louis, and afterwards, on the 18th day of April, 1903, on application of plaintiff for a change of venue, the cause was trans- ferred to the circuit court of Montgomery county, where plaintiff, upon trial had, recovered a verdict and judgment for the sum of thirty thousand dollars. Defendant filed motion for new trial, and afterwards, and wthin four days after the rendition of the verdict, filed a supplemental motion for a new trial, also motion in arrest of judgment, which motions were by the court overruled, and defendant appealed. . . . One of the grounds for new trial assigned by defendant in its motion is that one of the jurors trying the cause was prejudiced and biased. The juror, Samuel A. Moore, upon his voir dire examination testified in effect that he had no business relations with or interest in the St. Louis Transit Company, and that he had no bias or prejudice against the parties, or either of them. Upon these statements he was accepted by both sides as a competent and qualified juror. After the case had been submitted to the jury it was learned that Moore was one of a large number of employees of the defendant company who went on a strike in the city of St. Louis in May, 1900, the strike continuing for several months, during which time feeling between the strikers and their em- ployers ran high; defendant's tracks were demolished by dyna- mite, and crimes, some amounting to felonies, were committed by ^ Only a part of the opinion is given. — Ed. 439 440 MOTION FOR NEW TRIAL the strikers. As soon as defendant's counsel learned that Moore took part in said strike, the court was informed thereof. When the motion for new trial wiis heard, Moore was offered as a ^^^tness for plaintiff. He chd not deny any of the charges made against him, his examination and evidence being confined solely to the questions asked on the voir dire. . . . That the juror was prejudiced against the defendant, and was not for that reason a comi^etont juror, was shown by the affidavits filed in the court below, antl this fact was further emphasized by the exceedingly large and unjustifiable verdict rendered by the jury. That the defendant would not have permitted Moore to serve on the jury, without objection, had its counsel been in pos- session of the facts disclosed by the affidavits, no one will doubt, and when the attention of the court was called to these facts it should have rectified the mistake in' granting a new trial. . . . The judgment is reversed and the cause remanded.^ All concur. WOODWARD V. DEAN. Supreme Judicial Court of Massachusetts. 1873. [Reported 113 Massachusetts, 297.] Tort. After verdict for the plaintiff, in the Superior Court, the defendant moved before Pitman, J., to set the verdict aside on account of the disqualification of a juror. At the hearing upon the motion it appeared that Henry B. Macomber, one of the jurors, was the husband of the plaintiff's niece. Tiie court found as a matter of fact, that the juror iiad no i)revious knowledge of the case, and had no ])ias or prejudice, unless such l)ias or prejudice must neces- sarily be inferred (roni the relationship; and that tiie defendant, although lie knew that Macomber was the plaintiff's nephew by in:irri;i^e, did n(jt kn(^w till after the trial, being persoiiMlly unac- quainted with him, that he was on the panel. The court found that there was no negligence on the defendant's j)art . 1 mt ruled as a matter of law that the mere fact of the relationship was not a sulfi- cient ground for .setting aside the verdict, and refused to grant the motion; and the defendant alleged exceptions. CIuAY, C J. It is provided by statute that the court shall, on rnoticm (jf <'ither party in a suit, examine on oath any i)erson who ' Knighta of Pythian v. Steele, 107 Tenu. 1, 03 S. W. 1 120, accord. — Ed. STAMPOFSKI V. STEFFENS 441 is called as a juror therein, to know whether he is related to either party, or has any interest in the cause, or has expressed or formed any opinion, or is sensible of any bias or prejudice therein; that the party objecting to the juror may introduce any other competent evidence in support of the objection; and that if it appears to the court that the juror does not stand indifferent in the cause, another shall be called and placed in his stead for the trial of the cause. Gen. Sts. c. 132, § 29. The evident object of this enactment is that the question whether the jurors summoned can impartially try the case shall be ascer- tained and determined before the trial proceeds. A party against whom a verdict has been rendered, who has not seasonably availed himself of the means of inquiry thus afforded him, may indeed, upon proof to the satisfaction of the court that a juror did not stand indifferent, by reason of facts unknown to the party until after the verdict, be granted a new trial or review at the discretion of the court; but he is not entitled to it as matter of law, and has no right of exception if it is refused. Jeffries v. Randall, 14 Mass. 205. Davis v. Allen, 11 Pick. 466. Kinnicutt v. Stockwell, 8 Cush. 73. Eggleston v. Smiley, 17 Johns. 133. In re Chelsea Waterworks Co., 10 Exch. 731. Exceptions overruled.^ STAMPOFSKI V. STEFFENS. Supreme Court of Illinois. 1875. [Reported 79 Illinois, 303.] Craig, J. This was an action of assumpsit, brought by appellee against appellant, to recover for labor performed in the manufac- ture of certain furniture. 1 See Kohl v. Lehlbach, 160 U. S. 293, 40 L. ed. 432, 16 S. Ct. 304 (juror an alien) ; Quinebaug Bank v. Leavens, 20 Conn. 87 (juror related to stockholder of plaintiff); State v. Brockhaus, 72 Conn. 109, 43 Atl. 850 (juror under required age); State t-. Pickett, 103 la. 714, 73 N. W. 346, 39 L. R. A. 302 (juror unable to read or write English) ; Dickerson v. North Jersey St. Ry. Co., 68 N. J. L. 45, 52 Atl. 214 (juror unable to understand English) ; Watts v. Ruth, 30 Oh. St. 32 (juror an infant); State t^. Harris, 69 W. Va. 244, 71 S. E. 609, 50 L. R. A. (n. s.), 933 (juror related to prosecuting witness). But see Jewell v. Jewell, 84 Me. 304, 24 Atl. 858, 18 L. R. A. 473. If either the party or his counsel was aware of the disqualification and did not challenge, there is no ground for granting a new trial. State v. Bussamus, 108 1a. 11,78N. W. 700. As to the right to a new trial for allowing or refusing to allow a challenge, see Chapter VII, Section II, supra. — Ed. 442 MOTION FOR NEW TRIAL A trial of the cause before a jury resulted in a verdict and judg- ment in a])i)ellee's favor for S153.0S. which the appellant seeks to reverse upon two grouncb: first, that the verdict is against the evidence; ^ second, improper conduct on the part of one of the jurors during the progress of the trial of the cause. . . . It is, however, claimed that the judgment should be reversed for the reason that, while the trial was in progress, one of the jurors, \\-ithout i^ermission, visited the place where the furniture was stored and made an examination of it for himself. It is not claimed that this act of the juror was done with the knowledge or consent of api)ellee or his attorney; on the contrary, the athdavits filed clearly show such was not the case. The juror had no right, \vithout the consent of the parties, to examine the furniture. On the trial of a cause the jury must rely upon the evidence introduced in court; they camiot go outside for the purpo.se of getting facts upon which to base a verdict. But it appears that appellant was informed of the irregular conduct of the juror while the cause was on trial, and before it was finally submitted to the jury. Under such circumstances it was the duty of ajipellant to notify the court of the conduct of the juror, and interpo.se an objection to the trial proceeding before a j uror who had been guilty of conduct which was likely to interfere with a fair and impartial administration of justice. This, however, he failed to do, but remained silent, and sjiecu- lated upon the chances of a successful verdict in his favor, predi- cated upon the superior information the jury had obtained in an unlawful manner. By remaining silent, when it was his duty to speak, he has waived the right now to object. It was held in the ca.se of Van Blaricum r. The People, 10 111. 304, that a party had a right to have a cause tried by a jiartial jury, if he .saw proper. So here, after appellant received notice of the conduct of the juror, if he saw ])r()i)er to have him pass upon his case it was his right to do so. At all events, his silence, after he Ix-caine aware of the improper conduct of the juror, must be regarded as a waixcr of the irregu- larity. A.s the record discloses no ^iil>*;taritial error, the jiidgtiieut will be afliniied. Judfjnunt djlinncd.' ' A part of tho f)i)ini<)n in wliidi it wiis licM tli.if the vinlid w.is not iif^.-iiiiHt tho nvidcnro i« oinitip*!. — Ed. » ZiMHill V. Southern Pac. Co., 100 Cul. S.iT, 1 Kl I'.ic. .'■)i:j, aroni. — Ei>. QUAGLIANA V. JERSEY CITY, HOBOKEN & PATTERSON ST. R. CO. 443 QUAGLIANA v. JERSEY CITY, HOBOKEN AND PATTERSON STREET RAILWAY COMPANY. Supreme Court of New Jersey, 1908. [Reported 77 New Jersey Law, 101.] Trenchard, J. This action was brought by the plaintiff to recover compensation for injuries to his foot alleged to have been caused by reason of his being thrown from and run over by a trolley car of the defendant company as he was attempting to board the car. The trial at the Essex Circuit resulted in a verdict for the defendant. The plaintiff was allowed this rule to show cause why the verdict should not be set aside. The first contention of the plaintiff is that the verdict was con- trary to the weight of the evidence. There is no merit in this contention.^ . . . The next contention of the plaintiff is that one Bagley, a material witness for the plaintiff, was influenced by the defendant to absent himself from the trial and that his absence justifies this court in granting a new trial. Misconduct of the prevailing party or his attorney, in inducing a witness to absent himself from the trial, is ground for a new trial. Carey v. King, 5 Ga. 75; Barron v. Jackson, 40 N. H. 365; Crafts V. Union Mutual Fire Insurance Co., 36 Id. 44. But the misconduct must be clearly established. Marsh v. Monckton, 1 Tyrw. & G. 34. The affidavits in this case, taken in pursuance of the rule, do not disclose misconduct upon the part of the defendant or its attorney. It appears that both sides desired to use Bagley as a witness. He was subpoenaed by the defendant, but not by the plaintiff. When he appeared at the office of the attorney of the defendant at about ten o'clock in the morning of the day of trial he was intoxicated, and because of his condition was informed that he was not needed that day, but was requested to be in court the next morning. The plaintiff voluntarily moved his case not\\'ithstanding the absence of the witness. The action upon the part of the defendant's attorney in excusing the witness was, we think, in good faith and evinces no misconduct on his part. The controlling reason why * The opinion of the court on this point is omitted. — Ed. 444 MOTION FOR NEW TRIAL the plaintifT did not have the benefit of Bagley's testimony was that he had neglected to subpcpna him. A new trial \y\\\ not be granted because of the absence of a witness due to the negligence of the appHcant. Sherrard v. Olden, 1 Halst. 344; 29 Cyc. 872. Let the rule to show cause be discharged, with costs.^ WALLER V. GRAVES. Supreme Court of Errors of Connecticut. 1850. [Reported 20 Connecticut, 305.] This was a petition for a new trial of a cause, which had pre- viously come before this court. Graves v. Waller, 19 Conn. R. 00. For the nature of the action and the declaration, it is sufficient, for the present purpose, to refer to the report of that case. On the trial of the cause to the jury, it became a material ques- tion, and one on which the determination of the cause depended, whether the words " rapacious creditor," were in the original manuscript, when it was handed to the editor of the New Milford Repul)lican, the newspaper in which it was alleged to have been published, or were inserted in the manuscript or jiublished in the newspaper, by some person, unknown to the petitioner, and v^ith- out his knowledge; the plaintiff in that suit claiming the former branch of the alternative, and the defendant the latter. The plaintiff introduced evidence tenthng to prove his claim. The defentlant, on the other hand, introduced Sylvanus Merwin, a.s a witness, who testified, that ho drew uj) in jxirt tlu" certificate on which the action wa.s founded: that he asked Waller if he would sign it ? That Waller a'^ked him what it was ? That he then read it over to him; that he made no objection to signing it, and * Hoc 1 Graham «\: W'atcrinaii, N'rw Trials, '2d cd., Chaps. VI ami \U; HillianI, New Trials, 2(1 etl., ("lia|). XVI; 14 Kticyc. of PI. and IV. 722 et acq. A.s to th«^ ofTeft of a failure to move for a cuiitimiance, sot* 14 Knryc. of PI. and Vr. 74U. In Shij)p r. SunKott, 9 B. Mon. (Ky.), 5, the court sjiid: " The correct practice in such case is for the party at once, upon the di.scovery of the cause, durinK the progress of the trial, which operates as a 8uri)ri8e on him, to move a continuance or postponement of the trial, and not attempt to avail him.s' in regard to it, until Averill, the editor, had gone beyond his reach. Averill had not disclosed the facts which he knew, to any body, and while in the vicinity, had every motive to conceal his knowledge of the matter. Under these peculiar circumstances, we cannot say, that Waller omitted any reasonable diligence in preparing his cause for trial. So if the evidence now claimed to be newly discovered, is merely cumulative evidence, we cannot grant a new trial, unless the effect of it will be to render clear and positive, that which was before equivocal and uncertain. By cumulative evidence is meant additional evidence of the same general character, to the same fact or point which was the subject of proof before. Watson v. Delafield, 2 Caines, 224. Reed v. McGrew, 1 Hammond, 386. Smith v. Brush, 8 Johns. R. 84. Pike V. Evans, 15 Johns. R. 210. The People v. The Superior Court, 5 Wend. 114. S. C. 10 Wend. 285. Guyot v. Butts, 4 Wend. 579. Gardner v. Mitchell, 6 Pick. 114. Chatfield v. Lathrop, Id., 417. Parker v. Hardy, 24 Pick. 246. The fact m dispute, on the trial of this cause, was, whether the words, " rapacious creditor," were a part of the libellous writing, when it was signed by Waller. That they were not, was the most material ground of defence; and this ground was supported, by the testimony of Merlin alone, who \vrote the article originally, and who swore that these words were not then in it. From some of the cases on this subject, it may perhaps be in- ferred, that courts have supposed all additional evidence to be cumulative merely, which conduced to establish the same ground of claim or defence before relied upon, and that none would be available, for a new trial, unless it disclosed or established some new ground. But this does not seem to us to be the true rule, as recognized in the best considered cases. There are often various distinct and independent facts going to establish the same ground, on the same issue. Evidence is cumu- lative which merely multiplies witnesses to any one or more of these facts before mvestigated, or only adds other circumstances of the same general character. But that evidence which brings to light some new and mdependent truth of a different character, although it tend to prove the same proposition «r ground of claim before 448 MOTION FOR NEW TRIAL insisted on, is not cumulative within the true meaning of the rule on this subject: as in the present case, Merwin testifietl only, that the libel, as printed and published, was not like the paper written by him and signed by Waller, in the particular referred to. But now appears a new fact, entirely independent of the testimony of MtTwin — one, which tlid not exist, at the time Merwin speaks of; which is, that another person, without the knowledge or consent of either Waller or Merwin, inserted the objectionable words into the article, which appeared m the newspaper. Suppose a question on trial to be, whether the note of a deceased person has been paid, and witnesses have been introduced testify- ing to various facts conducing to prove such payment, and after a verdict for the plamtifif , the executor should discover a receipt or discharge in full, or had discovered that he could prove the deliber- ate confession of the plaintiff of the payment of the note. There could be no question, in such a case, but a new trial should be granted, although the new facts go to prove the former ground of defence. But there is another reason, why we believe this new evidence is available. ^^lerwin testified, that the words " rapacious creditor," were not in the pajier signed by Waller; the testunony of John Gay lord conduced strongly to show that they were; and probably from this conflict of proof, the jur\' disregarded this ground of defence. This new evidence would now come in, to render certain a turning point in the case, which had been left in doubt l)efore. 1 Sw. Dig. 7S7. Watts, adm'r. v. Howard, adni'r. 7 Mete. 478. We shall therefore advise a new trial. In this opinion, W.\ite, Storrs, and Hinman, Js. concurred. Ellsworth, J. concurred in tlu* principles advanced in such opinion, but did not tliink tliem applicable to the present case; and for that reason, \v(ju1i1 not grant a new trial. New trial to be (jranled} ' See 1 Gruhurn &. Watcriiian, .\e\v Trials, 2d cd., Chap. XIII; Ililliard, New Trials, 2d ed., Chap. .\V; 14 Encyc. of PI. and Pr. 790 cl seq. In Glaasford r. Lewis, S2 Hun (N. Y.;, A(\, 4S, 31 N. V. Su|)|). KiJ, tlio court said: " It tnust appear that the evidence has lieen di.scovered since the triid; that it could not have l)een obtained upon the former trial l>y the exerci.se of reiuK>nabIe diligence; that it is material to the issue and K(M's to the merits of the ease; that it is not merely cumulative, and that its character is such that it would proliaMy have changed the result. When these facts ai)pejir and the court is satiMficd that the «'rids of justice will hv |)romoted liy aiiowinn the mov- ing party an opportunity to pre.s«:nt the newly di.scovered evidence, the motion will Ik' granted." — Ki>. HA WES V. GUSTIN 449 HAWES V. GUSTIN. Supreme Judicial Court of Massachusetts. 1861. [Reported 2 Allen, 402.] Complaint under St. 1859, c. 239, charging the defendant with being the father of a ba.stard child with which the complainant was pregnant. There was a trial resulting in a verdict of guilty; the defendant alleged exceptions on the ground of the incompetency of one of the jurors; the exceptions were sustained. At the second trial in the superior court, before Vose, J., the complainant was called as a witness, and was allowed to testify, under objection, that she in the time of her travail accused the defendant of being the father of her child. The judge, however, before the introduction of any further evidence, ruled, upon recon- sideration, that the evidence was incompetent, and directed the answer to be striken out, saying that it would not be regarded by the jury as a part of the evidence in the case. . . . The jury returned a verdict of guilty, and the defendant alleged exceptions.^ Dewey, J. The Gen. Sts. c. 72, authorizing proceedings to charge the father of a bastard child with contributing to its main- tenance, have materially changed the provisions found in the Rev. Sts. c. 49. In the particular of requiring the mother to accuse the putative father in the time of her travail, the necessity of proof of such fact no longer exists. It is competent evidence, and may be used as corroborating the testimony of the mother. Such being its pur- pose, it should of course more properly be shown by the testimony of other persons. If anj' error w^as committed by the presiding judge in allowing the mother in the first instance to testify to this fact, it was at once corrected, and the ans^ver of the witness as to the inquiry stricken out; and the jury were instructed not to regard this as a part of the evidence in the case. This it was com- petent for the court to do, though it is a power to be exercised very cautiously, and accompanied by such statements as will lead the jury fully to understand that the evidence is not to be allowed to have any effect upon their minds. . . . Exceptions overruled} ^ The statement of facts is abridged. — Ed. 2 But if the effect of the evidence improperlj- admitted is not really removed, anew trial should be granted. Waldron v. Waldron, 15C U. S. 361, 39 L. ed. 453, 15 S. Ct. 383. — Ed. 450 MOTION FOR NEW TRIAL CHEATHAM v. ROBERTS. Supreme Court of Arkansas. 1861. [Reported 23 Arkansas, 651.] Fairchild, J. Roberts brought an action of assumpsit against Cheatham, on an account for about one hundred and eighty-six dollars, of which nearly all was charged for money advanced to steamboats fur freight antl charges upon goods left for Cheatham upon the wharf-boat of Roberts; but an item of fifteen dollars was charged for storing the merchandize on which advances had been made, and for storing other merchandize. It did not appear in proof, on the trial, that any other merchandize than that on which advances had been made, had been stored by Roberts, whence it is argued that there is a want of evidence to sustain the charge for storage; but the proof was, that it was worth fifteen dollars to store the goods mentioned in the account. The only witness, who testified in the case, had personal knowl- edge of the correctness of the charges, except of the items charged from the 9th of June to the 4th of September, 1856, and these he supposed to be correct, as he had seen the steamboat receipts to Roberts for the amounts charged. This evidence was received by the court sitting as a jury without objection from the defendant. If the testimony had been resisted as incompetent, either when offered, or upon motion to exclude it after it was given, the court would doubtless have sustained the objection to its a(hnissi])ility, or would have disregardeil it at the request of the defendant, as on a motion to exclude, had the trial been by a jur>' ; or, on the motion of the defendant, the court might have declared it as law that the evidence wa.s not to be considered. But when the evidence was before the court sitting a.s a jury, we cannot say that the court ought not to have taken it into consideration in its finding, any more than we could say a jury should not consider it in making their verdict. In cither case, it belongs to the tribunal of fact to judge a.s it may from the facts proved. When the defendant raised the (|uc.stioii ui)ori the legal character of this evidence, for the first time, in his motion for ;i new trial, he did not present any point of law for adjudication, but only appealed to the discretion of the court for a fav(;r to he extended to him; and its refusal was not an errcjr of law. The Judy nivnt in a[Tinncd. DOE dem. LORD TEYNHAM v. TYLER 451 FARR V. FULLER. Supreme Court of Iowa. 1859. [Reported 8 Iowa, 347.] Trespass. Trial and verdict for defendant. Motion for a new trial sustained, and defendant appeals. The other material facts sufficiently appear in the opinion. Wright, C. J.^ The record shows that the new trial was granted, " for the reason that the instructions to the jury were, and are, erroneous." These instructions were asked by the defendant and given, and are all embodied in the bill of exceptions. It does not appear that plaintiff made any objections to said instructions, at the time they were given; and the defendant now insists that it was too late to do so, after the rendition of the verdict. To sustain this position, we are referred to the rule recognized by this court, in Rawlins v. Tucker, 3 Iowa, 213, and other cases, to the effect that a party will not be allowed to assign error upon instructions to which he made no objections at the time they were given. This case does not come within the rule referred to, for the reason that the court below has, by granting a new trial, admitted the error in giving the instructions, and taken steps, at the earliest possible moment, to correct the same. It was perfectly competent for the district court, upon its attention being called to the motion, to order a new trial, when satisfied that an error had been committed to the prejudice of the plaintiff, whether exceptions were taken to the action of the court at the time, or not. While we would not have interfered, if the motion had been overruled, neither will we when granted. . . . Judgment affirmed} DOE DEM. LORD TEYNHAM v. TYLER. Common Pleas. 1830. [Reported 6 Bingham, 561.] The question raised in this ejectment was, whether Henr\', the twelfth Lord Teynliam, was of sound mind when he suffered a recovery in 1789. There was conflicting evidence on the point; * A part of the opinion is omitted. — Ed. 2 As to the power of the trial court to grant a new trial on the ground of errors of law at the trial to which no exception has been taken, see Valerius v. Richard, 57 Minn. 443, 59 N. W. 534; Standard Oil Co. v. Amazon Ins. Co., 79 N. y. 506. — Ed. 452 MOTION' FOR NEW TRIAL but, in the opinion of the Court and jury, the e\'idence in favor of his lordship's being of sound mind prepontlerated. and on that ground a verdict was found for the defendant. A great number of witnesses spoke to liis lordship's competency to transact all ordinary business; and, among other evidence to this effect, the accounts of a deceased steward were i)ut in, which it was assumed his lordship had examined and settled. These accounts were handed to the jury, and commented on by the counsel for the defendant as being important to his case. The accounts, however, purporting to cUscharge the steward as well as to charge him. Jones Serjt. obtained a rule nisi for a new trial, on the ground, among other objections (see ante, 390), that those accounts had been improperly received in evidence, inasmuch as on the whole they tended to discharge the stewartl; and the only ground on which such documents could be received in evidence, was, as charg- ing the deceased person, and so being against his interest. War- ren V. Greenville, 2 Str. 1129, Goodtitle /'. Chandos, 2 Burr. 1065, Higham v. Ridg^vay, 10 East, 109, Outram v. IMorewood, 5 T. R. 121. Roe dem. Brune r. RawUngs, 7 East, 279, Calvert v. Arch- bishop of Canterbury, 2 Esp. G4G. Barry v. Bebbington, 4 T. R. 514. The court, ui^on hearing the report of the trial read, stopped Wilde Serjt., who was to have shewn cause, and called on Jones, to shew that there was not enough to sustain the vercUct, inde- pendentlj^ of the evidence objected to. He contended, that it was impossible for the court to discrimi- nate between the effects jiroduced l)y each parcel of evidence on the mind of tlic jury, or to determine that the verdict was not alt(;g('ther occasioned by the very lot of evidence now objected to; and that a new trial ought to be granted, if that evitlence were clearly inadmissible. TiNDAL, C. J. This rule must be discharged. I will assume for the purpose of this discussion, tluMighl give no opinion on the point, as we have not heard ihc other side, that the evidence in (luestion ought not to have been received. Bui the Court will not close their eyes to the rest of the evidence; ;ind if they see that then> is enough, not inerel\- to inaiui)t, if the verdict had been the other way, that it would have been set aside an improper. ' Only the opinion of the court in nivon. — Ed. DYER V. UNION RAILROAD COMPANY 455 In like manner, we are not convinced that the documents im- properly admitted did not weigh with the jury in forming their opinion, or that their verdict, if given for the defendant, must have been set aside as against evidence. On this point, therefore, the rule must be made absolute; and we need not refer to the numerous other points that have been debated. Rule absolute.^ DYER V. UNION RAILROAD COMPANY. Supreme Court of Rhode Island. 1903. [Reported 25 Rhode Island, 221.] Trespass on the Case for negligence. Heard on petition of defendant for new trial, and petition denied. Per Curiam. The court is of the opinion that evidence as to the failure to ring the bell on the car in question at the inter- section of other streets prior to the time of the accident was not proper. Agulino v. R. R. Co., 21 R. I. 263. But a consideration of the evidence shows that the negligence of the defendant was so clearly established that a new trial would be of no avail, since it clearly appears that the plaintiff was overtaken from the rear by the car of the defendant company, which was then running at a high and excessive rate of speed. And the court fails to find that the damages awarded were excessive. Petition for new trial denied.^ 1 The Rules of the Supreme Court, 1883, Order XXXIX, rule 6 (R. S. C. (Aug.), 1913), provide that " A new trial shall not be granted on the ground of misdirection or of the improper admission or rejection of evidence, or because the verdict of the jury was not taken upon a question which the judge at the trial was not asked to leave to them, unless in the opinion of the Court of Ap- peal some substantial wrong or miscarriage has been thereby occasioned." — Ed. 2 For conflicting decisions in the United States, see 1 Wigmore, Evidence, sec. 21. The New Jersey Practice Act (1912), sec. 27, provides: "No judgment shall be reversed, or new trial granted on the ground of misdirection, or the improper admission or exclusion of evidence, or for error as to matter of plead- ing or procedure, unless, after examination of the whole case, it shall appear that the error injuriously affected the substantia] rights of a party." — Ed. 456 MOTION FOR NEW TRIAL SAVERY v. BUSICK. Supreme Court of Iowa. 1861. [Reported 11 loua, 487.] On the 12th of October, 1857, defendant confessed a judgment before the clerk of the District Court for the sum of three huntired and nine doHars and fifty cents, being the supposed bahince due tlie phiintiff on a fifteen hundred dollar note, dated the 21st of July and pa>'aljle in six months. It was afterwards ascertained that a mis- take had been made in the computation of interest on said note, and that the true balance due was S384.50, being seventy-five dollars more than the amount for which judgment was confessed. This last named sum plaintiff alleges that the defendant afterwards made a parol promise to pay. FaiUng to do so, a suit was brought upon said promise to recover the seventy-five dollars before a magistrate. A trial being had, a judgment was rendered in favor of plaintiff for the amount of his claim. The cause was taken by appeal to the District Court, and on a second trial there, the i)lain- tiff claimed to have shown the mistake of seventy-five dollars in the confession of the judgment aforesaid, and the defendant's promise to paj' the same, and asked the court to say to the jury that upon this state of facts the plaintiff was entitled to recover; that a moral consideration is suflficient to suj^port a promise in ca.ses where there was originally a sufficient valuable consideration upon which an action could have been sustained, notwithstanding some positive rule of law might exempt the ]>art.y from liability. The court refuseil sucli instruction, and at the instance of defend- ant told the jurj' in substance that a mistake in the confession of the judgment sjwken of was no sufficient consideration in law, to su])p(jrt a i)romise to jiay the amount of the mistake; that such mistake could only be rectified l)y appeal to the Su])reme Court, or motion to the court rendering the judgm(>nt, or by proceeding in ef|uity; and that if the jury should find from the evidence that a judgment liad l^een rendered in the District Court ujwn a note which constituted any j^art of tlic claim or jjroniisc sued ui)on, theyshould find for the defendant. 'i'lic jiir>' in t licit- retirement gave a verdict for plaintitT directly a^'ain-t the insi met ions of the court, which, upon motion was set a^ide, and a new trial granted. I'roni this ruling of the court the appeal (•(Mlies. slade's case 457 Lowe, C. J. Whatever may be our view of the law of this case, it is impossible for us to express it, or consider the questioas pre- sented, without going behind the action of the jury in trampling upon the authority of the court, and thereby giving some coun- tenance to their assumption. This we are unwilling to do even by the slightest implication. It is no more competent for the jury to usurp the powers of the court, than it is for the court to interfere with their province in the ascertainment of facts. And when the jurj^, in this case, arrogated to themselves the right to determine the law in direct opposition to the instructions given them by the court, they were guilty of a flagrant abuse of their duties and obligations; and we will not review this case until it is tried upon the law as it shall be expounded by the court and not by the jury. Affirmed. SLADE'S CASE. King's Bench. 1648. [Reported Style, 138.] The Court was moved for Judgment formerly stayed upon a cer- tificate made by Baron Atkins, that the verdict passed against his opinion, Bacon Justice said, Judgments have been arrested in the Common pleas, upon such certificates. Hales of Councell wdth the Defendant prayed, that this Judgment might be arrested, and that there might be a new tryal, for that it hath been done heretofore in Uke cases. But Roll Justice held, it ought not to be stayed, though it have been done in the Common pleas, for it was too Arbitrary for them to do it, and you may have your attaint against the Jury, and there is no other remedy in Law for you; but it were good to advise the party to suffer a new tryal for better satisfac- tion. And let the Defendant take four dayes from hence to speak in arrest of Judgment if the postea be brought in, if not, then four days from the time it shall be brought in. 1 Seevers v. Cleveland Coal Co., (la., 1912) 138 N. W. 793; Ljiich v. Snead Architectural Iron Works, 132 Ky. 241, 116 S. W. 693, 21 L. R. A. (n. s.), 852, accord. Galligan r. Woonsocket St. Ry. Co., 27 R. I. 363, 62 Atl. 376, contra. Compare Butterhof v. Butterhof, 84 N. J. L. 285, 80 Atl. 394. — Ed. 468 MOTION FOR NEW TRIAL CUNNINGHAM d al. v. MAGOUN et al Supreme Judicial Court of Massachusetts. 1836. (Reported 18 Pickering, 13.] Assumpsit for goods sold and delivered. Hohvell, one of the defendants, did not appear. The other defendant, John Magoun, pleaded, that he never promised jointly with Holwell. At the first trial of this cause, a verdict Wii.s returned for the defendant; but a new trial was granted, on the ground that the verdict was against the evidence. The second trial was before ^^'ilde, J. It was achnitted, on the part of the plaintiffs, that the bargain was made in the name of Hohvell only, and that the goods were charged to him on the books of the plaintiffs. Witnesses were produced on both sides, to prove and disprove, respectively, the existence of a jiartnershi]} between Holwell and Magoun. The jury returned a verdict for the defendant. The plaintiffs moved for a new trial, on the ground, that the verdict was against the CN'idence. Shaw, C. J. The principles upon which new trials are granted, are now pretty well settled; and in general the difficulty arises, not so much from the uncertainty of the rules, as from the almost infinitely varied combinations of circumstances to which they are to be applied. The great jirinciplo, which is at the basis of jury trial, is never to be lost sight of, that to all matters of law, the court are to answer, to all controverted facts, the jury. The verdict of a jury is practically to be taken for truth. Formerly this distinction was effectually jireserved, by special pleading, whereby juries were compelled to answer yes or no, to a prcci.se fact, averred on one side and tlcnied on the other, and by attaint.s and other ex])edients, where juries departed from the truth, through prejudice or corrui)t motives. But by the prevail- ing use, in modern jjractice, of general declarations and general i.sHues, the jury is in most cases left to find a general verdict, which necessarily embraces the whole malter of law ami fact. The mode of trial therefore necessarily is, when the evidence is out, for the court to direct the jury iiypothetically, adapting the instructions in point of law to the state of evidence, putting it to the jury to return a verdict for the plaintiff or (jefendant. as they shall find certain f.icts proved to their .satisfaction or otherwise, by the evi- CUNNINGHAM V. MAGOUN 459 dence. The consequence obviously is, that the jury, in finding a general verdict, do in form return a verdict embracing the matter of law as well as fact; and, therefore, as they may mistake the instructions of the court, or may take the law into their own hands, imagining it to be severe or inequitable, they may return a verdict manifestly against the law and truth of the case. To render such a mode of trial safe and tolerable, there must exist a power somewhere, to re-examine verdicts with some freedom, and when it is manifest that juries have been warped from the direct line of their duty, by mistake, prejudice, or even by an honest desire to reach the supposed equity, contrary to the law of the case, it will be the duty of the court to set the verdict aside. When, therefore, the evidence is clear, plain and strong, and the law has been clearly and explicitly stated to the jury, and they decide against the law, it imposes upon the court the duty of interfering, because it must be apparent, that the jury have either uninten- tionally erred, by mistaking the terms of their instructions, or misapprehended the weight of the evidence, or that they have mis- taken their duty or abused their trust. This will be more readily presumed in case of a single verdict, than in case of a second verdict the same way. But where the question is purely matter of fact, where there is evidence for the minds of the jury actually and fairly to weigh and balance, where presumptions are to be raised and inferences drawn, and the jury may be presumed fairly to have exercised their judgment, a court ^N\\\ not feel at liberty to set a verdict aside, although upon the same evidence they would have decided the other way. This consideration is somewhat strengthened, where the verdict is against the party having the burden of proof. After an examination of the evidence, the judge concluded thus: In the present case, though there was strong evidence to prove a partnership, yet there was evidence the other way, the burden of proof was upon the plaintiffs, and two juries on the e\adence have decided against them. We do not feel warranted in sa>4ng that they have done wTong. Judgment on the verdict} 1 Compare Sprague v. Michell, 2 Chit. Rep. 271; Clark v. Whittaker, 19 Conn. 319. — Ed. 460 MOTION FOR NEW TRIAL JONES V. SPENCER. House of Lords. 1897. [Reported 77 Law Times Reports, 536.] This was an appeal from an order of the Court of Appeal (Lord Esher, ^LR. ami Chitty, L.J., Lopes, L.J. dissenting) refusing a new trial in an action tried before LawTance, J. and a jury. The action Wiis brought by the respondent, a horse-dealer in London, iigainst the appellant, a farmer at Bromsgrove, in Wor- cestershire, to recover the sum of 70/. for breach of a warranty of a carthorse which the respondent had purchased from the appellant on a warranty that the horse was at the time of the purchase " a good worker.'' The case of the respondent was that on the arrival of the horse by train in London it was immetliately found to be " a shiverer," and as such unable to back, and consequently not a good worker. In sujiport of his case the respondent called several veterinary surgeons who had examined the animal shortly after its arrival in London, and pronounced it to be a ver>' bad shiverer and suffering from a cUsease which must have been in existence at the time of its purchase by the respondent. On the other hand, the appellant called a number of \ntnesses who had used the animal continually, anil swore that uj) to the time of the .sale the animal was i)erfectly sound and had shown no symptom of shivering. The jury Umnd for the resjiondent for the amount daimiul. The appellant thi'reui)on a])iilicd to the Court of Apjieal for a new trial, on the ground that the verdict w:us against the weight of evidence. In the course of his judgment Lord Esher, M.Ti. remarked that, .short of perverseness on the i):irt of a jury, it was nearly, if not quite, impossible that a new trial could i)e obtained, on the ground that a verdict was against the weight of I'vidence when there was conflicting evidence in the case. Lopes, L.J. thought that the Court of Appeal had gone ratlier too far in refusing new trials in such cas<'s, and that it was clear from the judgment delivered in thf House of Lords in the case of the Metropolitan Railway Company r. Wright (.>t L. T. Hep. 058; 11 App. (-'its. lo2; that a new trial ought to be granted if it were necessary to prevent a miscarriage of justice. JONES V. SPENCER 461 At the conclusion of the arguments their Lordships gave judg- ment as follows : — The Lord Chancellor (Halsbury).' My Lords: I beUeve that your Lordships are all agreed that the result of this trial was un- satisfactory. I do not purpose to enter into the question of the evidence, because, according to a rule which has been established now for a great number of years, when a verdict is being set aside, it is not desirable that the judges who take part in the discussion of the question whether or not there shall be a new trial, should make any observations about what the effect of the evidence was, or what might or might not have been the proper course to pursue; because such observations are likely to prejucUce the trial which may come on afterwards; therefore, that matter ought to be left untouched by the tribunal which orders the new trial. For these reasons I do not propose to enter into the question of the exact position which might or might not be assumed by either of the parties when the new trial actually takes place; it is enough for me to say that I think that, taking either of the two views which have been suggested more than once in the course of the argument, either that the jury were wrong in what they did, or that it was not sufficiently apparent what was the question which they had to determine; at all events, the result is unsatisfactory, and the cause must be remitted for another trial. I have the less hesitation in coming to that conclusion, and so overruling the Court of Appeal, because that court does not appear to me (wnth great respect to the majority) to have applied its mind to the question which really arose, but they proceeded, apparently, upon some construction which had been placed upon a former decision of your Lordships, introducing, as was said, a new rule in a case of this sort. I am not aware that the Court of Appeal or this House have a right to introduce any new rule on the subject of a new trial; the question has been many times discussed, and certainly, so far as I am con- cerned, in using the language which I am reported to have used in dehvering judgment in the case of jMetropolitan Railway Company V. Wright (54 L. T. Rep. 658; 11 App. Cas. 152), I was not under the impression that I was suggesting anj^ new rule, I merely gave expression to what I have always believed to be tlTe rule ever since I entered the profession. It is a rule which I see no reason to alter, even if I had jurisdiction to do so, which I have not. I am confident in the belief that I gave utterance to no new rule, or 1 Concurring opinions of Lords Herschell, Macnaghten, Morris and Shand, are omitted. — Ed. 462 MOTION FOR NEW TRIAL suggested that anything had happened in later times to alter the established rule. I have been looking into the authorities to see what can have given rise to the impression that it wa^ a new rule, and I find that, in the case of Rafael r. Verelst (2 Wm. Bl. 987), now more than a centur>' ago, De Grey, C. J., said in substance very much what I said in Metropolitan Railway Company v. Wright. He says, " This verdict is not against the evidence. The court ■will not set it aside merely because they might have given it the other way." If there is a question of fact left to the jury, and they have reasonabh' answered it, their verdict cannot be disturbed. I am not aware of any observation of my own in the case of Metro- politan Railway Company /'. Wright which would suggest any other rule than that which has certainly been held as established with the authority of that learned judge more than a century ago. I have thought it right to say this because some misaijjirehcnsion appears to have existed in the mind of Lord Esher, M.R. that your Lordships in this House had laid down a new rule. He appears to have said that now it is almost impossible to get a new trial; I am not aware of the impossibility, and I am not aware of any authority in this House to lay dowTi any such new rule on the sub- ject. For these reasons I move your Lordships that this judgment be reversed, and that the respondent pay to the apj)ellant the costs both of the appeal to the Court of Appeal and in this House, and that the costs of the former trial and the costs of the new trial should depend upon the result of that trial.' BROWN, by his next friend, v. THE PATERSON PARCH- MENT PAPER COMPANY, Supreme Court of New Jersey. 1903. [Reported G9 New Jersey Law, 474.] On rule to show cau.se. Before Gummere, Chief Justice, and Justices Fort and Pitney. Fort, J. Tin* phiintilT recovered u verdict in tlie above-entitled cause for personal injuries. The character of the injuries was not controverted, nor is there any contention here tli.it the damages awarded were excessive. ' (■oiiipiin! VoKe v. Pennoy, 74 Minn. .TJ.'), 77 X. W. 122; and hcc Mc- Donald r'. Mclropolitiin St. Ky. (Jo., 1(57 N. V. (iO. (M) .\. E. 2H2, supra, p. 324. 8cc Tlmycr, rnliiiiiniiry Trcutisc on I'",vid' might have found both these facts the other way, but, as upon both trials in this cause the jury have found these facts in favor of the plaintiff, we think, under the circumstances of the case, the rule to show cause should be discharged. WOOD V. GUNSTON. Upper Bench. 1655. IReported Style, 466.] Wood brought an action upon the case against Gunston for speaking of scandalous words of him ; and amongst other words for calling him Traytor, and obteyns a verdict against him at the Bar, wherein the Jur}' gave 1500/. dammjiges. Upon the sui)position that the dammages were excessive, and that the Jury did favour the Plaintiff, the Defendant moved for a new tryal. But Sergeant Maynard opjiosed it, and said that after a verdict the partiality of the jury ought not to be questioned, nor is there any Presidents for it in our Books of the Law, and it would be of dangerous conse- quence if it should be suffered, and the greatness of the dammages given can be no cause for a new tryal, but if it were, the dammages are not here excessive, if the words spoken be well considered, for they tend to take away the Plaintiff's estate and his life. Wiml- ham on the other side pressed for a new tryal, and said it was a packed l)usiness, else there couUl not have been so great dammages, and the Court hath ])o\ver in extraordinary cases, such as this is, to grant a new tryal. Glyn chief Justice, It is in the discretion of the Court in some ca.ses to grant a new tryal, l)ut this must bea judicial, and iKjt an arbitrary iliscrction, anil it is frecjucnt in our Hooks for the Court to take notice of mi.scariages of Juries, and to grant new- trials upon tliem, and it is for the i)eo])les benefit that it should i)e so for a Jury may sometimes by indirect dealings be moved to side with one i)arty and not to be indiffercnl lietuixt them, but it cannot be so intended of tln' Court; wherefore let there be a new tryul the next Tenn, and the Defendant shall pay full Costs, and judgment to be uiton this Verdict to stand for security to pay what .shall be recoveretl ui)on the next verdict.' ' Sec Thftvor, IVcliininary TrcutiHo on lOvidcnrx', 170. — En. PRAED V. GRAHAM 465 PRAED V. GRAHAM. Court of Appeal. 1889. [Reported 24 Queen's Bench Division, 53.] Appeal from a decision of the Queen's Bench Division. In an action to recover damages for a Hbel contained in a letter written by the defendant to the plaintiff's \\4fe, the jury gave a verdict for the plaintiff and assessed the damages at 500/. The defendant having moved for a new trial on the ground {inter alia) that the damages were excessive, the Queen's Bench Division dismissed the motion. The defendant appealed. Fillan, for the appellant, contended {inter alia) that the damages were so excessive as to come wdthin the definition which Palles, C. B., in McGrath v. Bourne, 10 Ir. Rep. C. L. (Ex.) 160, said had been stated by Fitzgerald, J., namely, that in order to justify the Court in granting a new trial on the ground of excessive damages, " the amount should be such that no reasonable proportion exists between it and the circumstances of the case." Lockwood, Q. C. {Atherly Jones, with him), was asked to argue the question of damages only. The older authorities shew that the Court will not grant a new trial unless they can trace out some misconduct, or gross error, or misconception, on the part of the jury in assessing the damages: see Mayne on Damages, 4th Ed., p. 553, and the cases there collected. There is nothing to shew any such misconduct or error in the present case. If the true definition be that the amount must be so large that no jury could reasonably have arrived at it, the amount in this case, having regard to all the circumstances, does not satisfy that definition. It certainly seems reasonable that, with respect to granting a new trial on the ground of excessive damages, the Court should act upon the same rule as is appUed when a new trial is asked for on the ground that the verdict is against the weight of evidence. The jury were entitled to consider the defendant's whole conduct in the matter from the time the libel was published down to and at the trial, and to assess the damages accordingly. Fillan, replied. Lord Esher, M. R. In this case two questions of law have been discussed which I desire to notice. The first question is, what is the rule of conduct which should be followed by the Court 466 MOTION FOR NEW TRIAL — either a Di\'isional Court or the Court of Appeal — to which an apphcation is made in such an action as an action for a Ubel to set aside the verdict on the ground that the damages given b}' the jur\' are excessive ? I think that the rule of conduct is as nearly as possible the same as where the Court is asked to set aside a verdict on the ground that it is against the weight of evidence. If the Court, having fully considered the whole of the circumstances of the case, come to this conclusion only: — " We think that the damages are larger than we ourselves should have given, but not so large as that twelve sensible men could not reasonably have given them," then they ought not to interfere \\ith the verdict. If, on the other hand, the Court thinks that, having regard to all the circumstances of the case, the damages are so excessive that no twelve men could reasonably have given them, then they ought to interfere ^^'ith the vercUct. If the authorities are looked at that will be found to be the rule of conduct which the judges have adopted. If the Court can see that the jxiry in assessing damages have been guilty of misconduct, or made some gross blunder, or have been misled by the speeches of the counsel, those are un- doubtedly sufficient grounds for interfering with the verdict, but they come within the larger rule of conduct which I have laid down, and are grounds which are included in that rule. I think that the proposition said to have been stated by Fitzgerald, J., is equivalent to the one I have stated. I desire also to say that in actions of libel there is another rule, which is this: — the jurj' in assessing ilamages are entitled to look at the whole conduct of the defendant from the time the libel was published down to the time they give their verdict. They may consider what his conduct has been before action, after action, and in court during the trial. [His Lordship then proceeded to deal \vith the facts of the case, and came to the conclusion that the jur>' might, not unreasonably, have given the damages which they gave.] LiNDLEY and Lopes, L.J J., concurred. Appeal dismissed. PHILLIPS V. THE SOUTH WESTERN RAILWAY COMPANY 467 PHILLIPS V. THE SOUTH WESTERN RAILWAY COMPANY. High Court of Justice, Queen's Bench Division. 1879. [Reported 4 Queen's Bench Division, 406.] ^ CocKBURN, C. J. This was an action brought by the plaintiff to recover damages for injuries suffered, when travelling on the defendants' railway, through the negligence of their servants. A verdict having passed for the plaintiff with 7000L damages, an application is made to this Court for a new trial, on behalf of the plaintiff, on the ground of the insufficiency of the damages as well as on that of misdirection as having led to an insufficient assess- ment of damages; and we are of opinion that the rule for a new trial must be made absolute; not indeed on the ground of misdirec- tion, for we are unable to find any misdirection, the learned judge having in effect left the question of damages to the jury, with a due caution as to the limit of compensation, though we think it might have been more explicit as to the elements of damage. It is extremely difficult to lay down any precise rule as to the measure of damages in cases of personal injury like the present. No doubt, as a general rule, where injury is caused to one person by the wrongful or negligent act of another, the compensation should be commensurate to the injury sustained. But there are . personal injuries for which no amount of pecuniarj' damages would afford adequate compensation, while, on the other hand, the attempt to award full compensation in damages might be attended with ruinous consequences to defendants who cannot always, even by the utmost care, protect themselves against carelessness of persons in their employ. Generally speaking, we agree with the rule as laid down by Brett, J., in Rowley v. London and North Western Ry. Co. an action brought on the 9 & 10 Vict. c. 93, that a jury in these cases " must not attempt to give damages to the full amount of a perfect compensation for the pecuniarj^ injurj'', but must take a reasonable view of the case, and give what they consider under all the circumstances a fair compensation." And this is in effect what was said by Mr. Justice Field to the jur>' in the present case. But we think that a jury cannot be said to take a reasonable view of the case unless they consider and take into » Affinned 5 Q. B. D. 78. — Ed. 468 MOTION FOR NEW TRIAL account all the heatls of damage in respect of which a plaintiff complaining of a personal injury is entitletl to compensation. These are the bodily injury sustained; the pain undergone; the effect on the health of the sufferer, according to its degree and its probable duration as likely to be temporary or permanent; the expenses incidental to attempts to effect a cure, or to lessen the amount of injury; the pecunian,' loss sustained through inability to attend to a profession or business as to which, again, the injury may be of a temporary character, or may be such as to incapacitate the party for the remainder of his life. If a jur^' have taken all these elements of damage into coiLsideration, anil have awarded what they deemed to be fair and reasonable compensation under all the circumstances of the case, a Court ought not, unless under ver>' exceptional circumstances, to disturb their verdict. But look- ing to the figures in the present case, it seems to us that the jury must have omitted to take into account some of the heads of damage which were properly involved in the plaintiff's claim. The plaintiff was a man of midtUe age and of robust health. His health has been irreparal)ly injured to such a degree as to render life a burden and source of the utmost misery. He has undergone a great amount of pain and suffering. The probability is that he \\ill never recover. His condition is at once helpless and hopeless. The ex]3en.ses incurred by reason of the accident have already amounted to 1000/. Medical attendance still is and is likeh' to be for a long time necessarj'. He was making an income of 5000/. a year, the amount of which has been i)ositi\'ely lost for sixteen months between the accident and the trial, through his total incapacity to attend to his professional business. The positive pecuniary loss thus sustained all i)Ut swallows up the greater i)or- tion of the damages awarded Ijy the jury. It leaves little or nothing for health permanently destroyed and income i)erma- nently lost. We are therefore led to the conclusion, not only that the damages are inadequate but, that the jury must have omitted to take into consideration .some of the elements of ilamage which ought to have been taken into account. It was contended, on iielialf of the defendants, that even a.ssum- ing the damages to i»e inadcciuate, the Court ought not on that account to .set aside the verdict and direct a new trial, inadequacy of damages not being a suflicient ground for granting a new trial in an artion of tort, unless there has been misdirection, or miscon- duct in the jury, or miscalculation, in supjjort of which position ti,,. ,-.,,.., ,.f Kendall V. Ilavward, and Forsdikc v. Stone were relied DETZUR V. B. STROH BREWING CO. 469 on. But in both those cases the action was for slander, in which, as was observed by the judges in the latter case, the jury may consider, not only what the plaintiff ought to receive, but what the defendant ought to pay. We think the rule contended for has no application in a case of personal injury, and that it is perfectly competent to us if we think the damages unreasonably small to order a new trial at the instance of the plaintiff. There can be no doubt of the power of the Court to grant a new trial where in such an action the damages are excessive. There can be no reason why the same principle should not apply where they are insufficient to meet the justice of the case. The rule must therefore be made absolute for a new trial. Rule absolute.^ DETZUR V. B. STROH BREWING CO. Supreme Court of Michigan. 1899. [Reported 119 Michigan, 282.] Hooker, J,^ The plaintiff was injured b\' a piece of glass, which fell from a window of the defendant's building, cutting her arm severely, and permanenth' impairing its use, according to some of the testimony in the case. There is testimony upon the part of the plaintiff tending to show that a round window in the upper story was broken for some days or weeks before the accident, and that it was a piece of glass from this window which injured the plaintiff. The defendant offered testimony tending to show that there was no broken \nndow in the builcUng on the daj^ before the accident, and that the glass causing the injury came from a square window, in a lower story, and its fall was caused by a high ^A-ind blo^^'ing at the time. The theor}' of the only count relied upon is that the defendant created and maintained a nuisance, in an insecurely fastened and broken ^nndow sash and glass, whereby the plaintiff was injured. A verdict of SI 0,000 was rendered in behalf of the plaintiff. A motion being made for a new trial, the court denied 1 See Falvey v. Stanford, L. R. 10 Q. B. 54; Simmons v. Fish, 210 Mass. 563, 97 N. E. 102, .\nn. Cas. 1912, D, p. 588; McDonald v. Walter, 40 N. Y. 551; Benton v. Collins, 125 X. C. S3, 34 S. E. 242, 47 L. R. A. 33; Toledo Railways & Light Co. v. Mason, 81 Oh. St. 463, 91 N. E. 292, 28 L. R. A. (n. s.), 130. See also Sundgren v. Stevens, 86 Kan. 154, 119 Pac. 322, 39 L. R. A. (n. s.), 487. — Ed. ^ A part of the opinion is omitted. — Ed. 470 MOTION FOR NEW TRIAL the same, upon condition that the plaintiff remit the sum of S6,500 from the verdict, which was done. The defendant has brought error. . . . A motion for a new trial was made upon the follo^^^ng grounds: 1. The damages are excessive. 2. The damages are so excessive as to evince passion, prejudice, partiality, or corruption of the jury. 3. The verdict is against the weight of evidence. The court found that the damages were excessive; that they were not so excessive as to evince passion, prejudice, or corruption, and that they do not exist ; that the jurors were so moved by sym- pathy for the plaintiff, and by their coimnon knowledge of the financial ability of the defendant, and their belief of large amounts expended by the defendant for medical expert evidence, as to have awarded a larger amount than they otherwise would have done, and to that extent partiality is found; that the verdict is not contrary to, or against the weight of, the evidence. An order was then made ordering a new trial, unless 86,500 should be remitted from the verdict. Error is assigned upon this order. Counsel argue that S3, 500 is excessive damage for a stiff arm; but we can- not say that it is so clearly excessive as to justify our interference upon that ground. We are also of the opinion that making a new trial dependent upon a refusal to remit a portion of the verdict in ca.ses of this kind is a well-settled ])ractice in this State, where, as in this case, the amount of unliquidated damage is the only question involved. It ha.s always been considered lawful for the trial judge in such a case to set aside a verdict as excessive; and it has been a common practice to grant a portion of the relief asked by requiring a remission (jf a porti(jn of the verdict as a condition u])on which the new trial will be denied. This luis always been a matter of dis- cretion, and, where it is not clearly erroneous, the action of the trial court should not be disturlx-d. Several other questions are raised, but (»iir iiucstigalioii of them leads to the conviction that they do imt I'unii-h :i ground for reversal of the case. We tliuik it. unnecessary to discuss them. The jury found a cause of action, and that, left merely the question of the amf)unt of damjiges to be awarded. These involved pain and suffering, and ])rospective as well as past (lej)rivation of the u.se of the arm. Such damages are not altogether a matter of mathematical eomjjutation, but they are determined liy the con- cen«us of oj)inion of the jury, acting under the direction of tiie TROW V. VILLAGE OF WHITE BEAR 471 judge. The question of new trial was within the discretion of the court. The judgment of the circuit court is aflfirmed.^ The other Justices concurred. TROW V. VILLAGE OF WHITE BEAR. Supreme Court of Minnesota. 1899. [Reported 78 Minnesota, 432.] Brown, J. This action is one to recover damages for injuries to plaintiff's person, caused, as is alleged in the complaint, by a defec- tive sidewalk located within the corporation limits of defendant village. A verdict was returned in the court below in plaintiff's favor for the sum of SI ,400. The defendant moved that court for a new trial on the grounds: (1) Excessive damages, appearing to have been given under the influence of passion and prejudice; and (2) that the verdict is not justified by the evidence, and is contrary to law. The court made an order granting the motion unless plaintiff should consent to remit from the verdict all in excess of S800, but denying it in case she should so remit. Plaintiff filed a proper remittitur, judgment was thereupon entered in her favor for $800 and costs, and defendant appeals. 1. The first question presented by appellant is whether a new trial should not be granted, as a matter of right, when it is deter- mined by the trial court that excessive damages have been awarded by a jury under the influence of passion and prejudice. The position of appellant's counsel is that, where it is determined by the trial court that excessive damages have been so awarded by a jury, a new trial should be granted, and the error of the jury cannot be corrected by a reduction of the verdict. Taken from a statutory' point of view, there is, in the opinion of the A\Titer, much logic and good sense in counsel's position. Our statutes provide for granting a new trial in cases where excessive damages have been awarded by a jury acting under the influence of passion and prej- 1 See a collection of cases in accord with the principal case in 39 L. R. A. (n. s.), 1064. But compare Watts v. Watts, [1905] A. C. 115. Similarly the defendant may prevent a new trial on the ground that the verdict is too small, by consenting to the entry of a judgment for the proper amount, in cases where the proper amount can be fixed by computation. Carr v. Miner, 42 111. 179. — Ed. 472 MOTION FOR NEW TRIAL udice, and contain no exception or saving clause under which the trial court may correct the erroneous conduct of the jury by reduc- ing the verdict. A strict following of the statutes would there- fore require a new trial whenever such a verdict is returned. But the practice of correcting the error of the jury by reducing the damages to what the trial court deems reasonable and fair, not 011I3' in cases where it is found that the jury was actuated by motives other than passion and prejudice, but in cases where there was no other apparent cause, is too firmly rooted in this state to be now departed from. Of course, in cases where there is such a degree of passion and prejudice as to make it clear to the court that it permeated the entire case, and influenced the jurj- upon questions other than damages, such misconduct on the part of the jury (for it amounts to misconduct) will not be overlooked, or any attempt made to cor- rect it by a reduction of damages. In such cases an unconditional new trial will always be granted. But in cases where the trial court, in the exercise of a sound discretion, determines that the passion and prejudice did not influence the jury as to other ques- tions in the case, and that the verdict is right, except that it is excessive, the error of the jurj' may be corrected by a reduction of the amount of the verchct to such sum as the court deems jjroper. We are not able to say, from the record before us, that the trial court erred in reducing the verdict in this case, and must sustain the order. 2. We have examined the evidence with care and patience, and conclude that the verdict, as to the other questions, ai)proved as it has been by the trial court, cannot be disturijcd. Judgment affirmed.^ ' Compare Tunnel Mining & lyea-sinR Co. v. Cooper, .W Colo. 390, WH Pac. 901, 39 L. K. A. (.s. s.), 1()()4, .\iin. Ca.s. 1912. C, p. 504; Laiith r. ChicaKO Union Traction Co., '244 111. 244, 91 \. E. 431; McXanuira r. .McXamara, 108 Wis. G13, 84 N. W. 9(J1. An error of law affecting the entire verdict cannot be cured by a remittitur. FIr>ody t;. Great Northern Ily. Co., 102 Minn. SI, 112 N. W. S7o, lOSl, 13 L. It. A. (n. a.), 1190. —Ed. GILA VALLEY, GLOBE AND NORTHERN RAILWAY CO. V. HALL 473 GILA VALLEY, GLOBE AND NORTHERN RAILWAY COMPANY V. HALL. Supreme Court of the United States. 1914. [Reported 232 United States, 94.] Pitney, J.^ This is a re\'iew of a judgment of the Supreme Court of Arizona, rendered prior to Statehood, affirming the judgment of one of the territorial district courts, in an action brought by Hall against the Railway Company to recover damages for personal injuries. . . . Upon the trial the jury returned a verdict in his favor for S10,000. The Company moved for a new trial, and, pending this motion. Hall voluntarily remitted S5,000 from the amount of the verdict. Thereafter the trial court denied the motion, and entered judgment in Hall's favor for S5,000 and costs. From this judgment and from the order denying the motion for new trial the Company appealed to the territorial Supreme Court, which aflBrmed the judgment, as already stated. 13 Arizona, 270. This writ of error is sued out by the Railway Company and the sureties upon the supersedeas bond that was given for the purposes of the appeal to the territorial Supreme Court. A reversal of the judgment is sought because of alleged trial errors. . . , It is insisted that there was error in entering judgment in favor of the plaintiff for S5,000, after the residue of the verdict of 810,000 was remitted pencUng the motion for new trial. The argument is that the voluntary remission of so large an amount by the plaintiff was an admission that the verdict was excessive ; that an excessive verdict may not be cured by a remitter where the amount of the damages cannot be measured by any fixed standard or determined ^vith certainty; that a verdict so excessive is conclusive evidence that it was the product of prejudice on the part of the jury, and that this vice goes to the entire verdict, and not merely to the excess. The practice, however, is recognized by the Civil Code (Ariz. Rev. Stat. 1901, pars. 1450 and 1451), which permit any party in whose favor a verdict or judgment has been rendered to remit any part thereof, after which execution shall issue for the balance only of such judgment. In Northern Pacific R. R. Co. v. Herbert, 116 U. S. 642, 646, an action in a territorial court to re- cover damages for personal injuries that necessitated the amputa- tion of a leg, there was a verdict in favor of the plaintiff for 825,000, ^ A part of the opinion is omitted. — Ed. 474 MOTION FOR NEW TRIAL a motion for a new trial on various grounds, among others that the damages were excessive, ami the court ordered that a new trial be granted unless plaintiff remitted S15,000 of the verdict, and, in case he did so, that the motion should be denied. He remitted the amount, and judgment was entered in his favor for the Ixilance, which the Supreme Court of the Territory atiirmetl. This court held that the matter was within the discretion of the court; and this even without the sanction of a statute. The constitutional question involved was reexamined in Arkansas Cattle Co. r. Mann, 130 U. S. 69, 73, and the decision in the Herbert Case was adhered to, it being held that the practice under criticism did not in any just sense impair the right of trial l)y jury. In Southern Pacific Co. v. Tomlinson, 4 Arizona, 126, 132, and in Southern Pacific Co. v. Fitchett, 9 Arizona, 128, 134, the general practice was sustained by the territorial Supreme Court. In the former case, however, it was said (4 Arizona, 132) that "if it is apparent to the trial court that the verdict was the result of pa.ssion or prejudice, a remittitur should not be allowed, but the verdict should be set aside. In passing upon this question the court should not look alone to the amount of the damages awarded, but to the whole ca.se." In the Fitchett Case, it appearing that the trial court was of the opinion that more than half of the damages awarded for the appellee's injured feelings were excessive, the Supreme Court held that c\'idently the verdict was not the result of cool and dispa.ssionate consideration, and that the question of the proper sum U) be awarded ought not to have been determined by the trial court, but should have been submitted to the deter- mination of another jury. In the present case (13 Arizona, 276) the majority of the c(jurt declared they were not ]irepareiri^ this decision. Jud[iintnt ajjinncd. ATCHISON, T. & S. F. RY. CO. V. COGSWELL 475 ATCHISON, T. & S. F. RY. CO. v. COGSWELL. Supreme Court of Oklahoma. 1909. [Reported 23 Oklahoma, 181.] This action was brought by Jud Cogswell, plaintiff, against the Atchison, Topeka & Santa Fe Railway Company, defendant, in the United States District Court for the Northern District of the Indian Territory at Bartlesville, for damages sustained on account of personal injuries by him received at defendant's station plat- form in the town of Bartlesville, caused by the alleged negligence of the railway company. . . . Defendant in its answer specifically denies all the allegations of the petition. The case was tried to a jurj'^, who returned a verdict for plaintiff, and assessed his damages at $1,600. On motion for a new trial the court required the plaintiff to elect to accept a judgment for $1,000 in lieu of the amount fixed by the jury, which plaintiff declined to do. The court then remitted $600 upon his own motion from the amount fixed by the jury, and rendered judg- ment in favor of plaintiff for $1,000. From this judgment defend- ant appealed to the United States Court of Appeals of the Indian Territory, and plaintiff has filed his cross-appeal, complaining of the court's action in reducing the judgment. The case is now be- fore this court for final disposition under the provisions of the enabUng act (Act June 16, 1906, c. 3335, 34 Stat. 267). Hayes, J.^ . . . In its motion for a new trial, some of the grounds assigned by plaintiff in error were: " Because said verdict is for excessive damages appearing to have been given under the influence of passion and prejudice "; '' because the verdict is not sustained by sufficient evidence "; and '' because it is contrary to the evi- dence." The court upon hearing the motion required the plaintiff to accept a judgment for $1,000 in lieu of the amount fixed by the jury, which plaintiff declined to do. The court thereupon remitted $600 from the amount fixed by the jury, overruled plaintiff in error's motion for a new trial, and rendered judgment for the sum of $1,000. This act of the court is complained of by plaintiff in error in its petition and by defendant in error in his cross-appeal, and was error as to both. The Code in force in the Indian Terri- tory at the time of the trial in this case provided that the court 1 The statement of facts is abridged and a part of the opinion is omitted. — Ed. 476 MOTION FOR NEW TRIAL may vacate and set aside the verdict of a jury and grant a new trial upon several grounds, among which are the following: " Excessive diimages ajipearing to have been given under the influence of passion or prejuthce "'; " the verdict or decision is not sustained by sufficient evidence, or is contrary to law." Section 5151, Mansfield's Dig. Ark. As was said by the court in Kennon v. Gilmer, 131 U. S. 22, 9 Sup. Ct. 696, 33 L. Ed. 110, under this statute, as at common law, the court upon the hearing of a motion for a new trial may in the exercise of its judicial discretion grant or deny a motion for a new trial, or make order that a new trial be granted unless the plaintiff elects to remit the excessive part of the verdict, and, if he does remit, that judgment be entered for the amount of the verdict less the amount remitted. See, also, Little Rock & Ft. Smith Ky. Co. v. Barker et al, 39 Ark. 491; Northern Pacific Ry. Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. 590, 29 L. Ed. 755; Railway Co. v. Turley, 1 Ind. Ter. 283, 37 S. W. 52; Blunt v. Little, 3 Mason, 102, Fed. Cas. No. 1578. But the trial court is without authority to reduce a vercUct and render judgment for the reduced amount ^^^thout the consent and over the objection of the plaintiff. Massadillo v. Railway Co., 89 Tenn. 661, 15 S. W. 445; BTovm V. McLeish et al, 71 Iowa, 381, 32 N. W. 385; Noel v. Dubuque, Bellevue & Mississippi Ry. Co., 44 Iowa, 293; Young V. Cowden, 98 Tenn. 577, 40 S. W. 1088. It is therefore apparent that the action of the court in rendering judgment for the reduced amount was error as to the plaintiff, for, when he refused to remit, the court was only authorized to grant a new trial. Plaintiff in error wa.s jxho prejudiced by the action of the court; for, when the court decided that the verdict of the jury was exces- sive, and should be reduced to the amount specified by him in his order, it was entitled to have a new trial if defendant in error refused to remit the amount required by the court, and, while in one sen.se, it may be .said that this act of the court is in favor of plaintiff in error in that its result is to reduce the amount of the judgment against it, it is not, however, the order plaintiff in error was entitled to. . . . In the ca.se at bar, when tlu; court entered judgment for the lesser sum, if plaintiff in error had not appealed, defendant in error had the right of appeal, and has availed liiinself of it by his eroHs-appeal herein, and j)laintiff in error would have been com- [M-lled to defend against defendant in ( rror's appeal in order to prevent being held for the larger sum on appeal, for which plaintiff n(jw coriterid^ in his crcjss-aijpeal. SAN DIEGO LAND AND TOWN CO. V. NEALE 477 We have examined carefully the evidence in this case and cannot say that the trial court erred in his conclusion that the verdict was excessive. The cause ^vill be reversed and remanded with direc- tions to grant a new trial, and that the cost in this court be taxed equally against the parties.* All the Justices concur. SAN DIEGO LAND AND TOWN COMPANY v. NEALE et al. Supreme Court of California. 1888. [Reported 78 California, 63.] Hatne, C.2 Proceeding to condemn land for the purposes of a reservoir. It appears from the findings that the use was a public use; that the value of the land to be taken was $280 per acre, amounting in all to $98,126; that the damage to the remainder of the tract amounted to $1,805, and that the value of the improve- ment was $300. The plaintiff moved for a new trial as to issue concerning the value of the land sought to be taken, but as to no other issue, and appeals from the order denying the motion. The defendants make a preliminary objection that a party can- not move for a new trial as to a part of the issues. So far as we are advised, this precise question has not been decided in this state. But upon principle, and according to the analogies of existing rules, we think that the objection is not well taken. There is nothing in the code either expressly forbidding or expressly authorizing such a course. The implication from the language, however, tends to sanction it. The definition of a new trial is as follows: " A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury or court or by referees." Code Civ. Proc, sec. 656. Now, as the law-makers caimot be supposed to have thought that the majority of cases involved only one issue of fact, there is perhaps some implication that they intended that there might be such a thing as a new trial of a single issue, whether there were other issues or not. There is at least no implication 1 See Kennon v. Gilmer, 131 U. S. 22, 33 L. ed. 110, 9 S. Ct. 696; Brown v. McLeish, 71 la. 381, 32 N. W. 385; Isley v. Bridge Co., 143 N. C. 51, -55 S. E. 416; Rodgers v. Bailey, 68 W. Va. 186, 69 S. E. 698. But see Beach v. Bird & Wells Lumber Co., 135 Wis. 550, 116 N. W. 245. — Ed. * Only a part of the opinion of Hayne, C, is given. — Ed. 478 MOTION' FOR NEW TRIAL to the contran-. The analogies of other provisions and previous decisions support the \'iew that there may be a new trial as to a part of the issues. Thus a party may appeal from a part of a judgment or order. See cases collected in note 4 to section 185 of Hayne on New Trial and Ajiiieal. So it has been held that where a party serves his notice of intention to move for a new trial upon only one of two defendants, it is proper to grant a new trial as to the one served, but not as to the other. Wittenbrock v. Bellmer, 57 Cal. 12. And it has always been the practice (except in cases of a peculiar character) for any jiarty who is cUssatisfied with the result to move for a new trial as to himself, leaving the judgment to stand as to the other parties. And in one sense such a motion is a motion for new trial as to a part of the issues. So it is settled that, upon an appeal from the judgment, the apjiellate court may order a new trial as to a part of the issues, leaving the decision in force as to the remainder. Marziou v. Pioche, 10 Cal. 546; Jungerman V. Bovee, 19 Cal. 364; Kinsey v. Green, 51 Cal. 379; LeClert v. OuUahan, 52 Cal. 253; Watson v. Cornell, 52 Cal. 91; Swift I'. Canavan, 52 Cal. 419; Billings v. Everett, 52 Cal. 661 ; Phipps v. Harlan, 53 Cal. 87. And if this can be done, it is difficult to assign a satisfactory reason why the part}' could not ask the trial court for the same relief in the first instance. The cases which hold that a motion for new trial is premature if made before all the material Issues are disposed of are not in conflict with our conclusion, for in the case before us all the material issues were disposed of before the motion was made. We see no inconvenience that can result from the ])ractice. The time to move as to the remaining issues would not be extended by a motion as to a part; and the party would lose his right to attack the findings as to the remaining issues, unless the time should ije extendetl, whicli could only be for a short period without the con-sent of the parties. And this being so, the result would simply be the elimination of a i)art of the controversy, which is not in itself undesirable. The cjuestion arose in Nevada upon a similar statute, and the court, after an elaborate examina- tion of the subject, held that a motion for new trial as to a part of the issues was permissible. Liikc /'. liendcr, IS Ncv. 361. We are sati.sfied with the rule laid down in that case. it is po.ssible that there may be cases where the issues are so ins('j)ur:ibly blended as to render a separation impracticable. We express no opinion as to that, liut it is clear that the present case is not of that char- acter. The |)reliiniiiary objection should therefore be over- ruled. . . . PARKER V. GODIN 479 The Court. For the reasons given in the foregoing opinion, the judgment as to all the issues, except the issue as to the value of the land taken, is affirmed; the judgment as to that issue, and the order denying a new trial, are reversed, and the cause remanded for a new trial of said issue, the appellant to recover its costs of appeal.^ PARKER et al v. GODIN. King's Bench. 1729. [Reported 2 Strange, 813.] Satur a bankrupt at the time of his going off left some plate with his wife, who in order to raise money upon it delivered to her servant, who went along with the defendant to the door of Mr. Woodward the banker, and there the defendant took the plate into his hands and went into the shop and pawned it in his own name, gave his own note to repay the money, and immediately upon receipt of it went back to the bankrupt's wife, and delivered the money to her. And in trover for the plate the jury (considering the defendant acted only as a friend, and that it would be hard to punish him) found a verdict for the defendant. But upon applica- tion to the court a new trial was granted, upon the foot of its being an actual conversion in the defendant, notwithstanding he did not apply the money to his own use. And upon a second trial the plaintiff obtained a verdict for the value of the plate. N. B. A difficulty arose upon the motion for a new trial, which was this. There were other things besides plate in the declaration, and as to them the verdict pro def was right; and yet a new trial must be granted upon the whole. But on consideration the court held that could be no reason to refuse a new trial, for if the merits as to those other things were ^^^th defendant, it would be found for him as to them. But it was agreed on all hands, that if one de- fendant be acquitted, and another found guilty, that defendant can have no new trial. Strange pro quer'. 1 Simmons v. Fish, 210 Mass. 563, 97 N. E. 102, Ann. Cas. 1912, D, p. 588. accord. As to the constitutionality of a statute providing that if a new trial is granted on the ground that the damages are excessive or inadequate, the new trial shall be hmited to the question of the amount of damages, see Opinion of the Justices, 207 Mass. 606, 94 N. E. 846. — Ed. 480 MOTION FOR NEW TRIAL In tne Matter of the Estate of EVERTS, Deceased. YOUNG MENS CHRISTIAN ASSOCIATION OF SANTA CRUZ d al V. CHAPMAN. Supreme Court of California. 1912. [Reported 163 California, 449.] Shaw. J.^ Jeanette L. Everts died in Santa Cruz County on January l(j, 1911. On January 19, 1911, a petition for the iirol)ate of a writing, tlated January 13, 1911, purporting to be her will was filed. A will previously executed had given certain legacies to the contestants above mentioned. They appeared and filed a contest of the will of January 13th. The grounds of contest were: 1. That the decedent was of unsound mind wiien said paper wa.s executed; 2. That it was procured l)y undue influence; and 3. That it was procured by fraud. The issues were tried by a jury which found that the decedent was of unsountl mind as alleged, but that the will was not procured by fraud or untlue influence. Thereupon the proponents and contestants moved, separately', for a new trial of the issues decided against them respectively, the pro- ponents asking a new trial of the issue as to insanity, the contes- tants for a new trial of the issues as to undue influence and fraud. The court granted the motion of the proponents and ordered a new trial of the issue as to insanity and, denying the motion of contes- tants, refused a new trial of the questions of undue influence and fraud. The contestants appeal separately from each order, the ai)j)('al from the order relating to the issue of insanity being ease No. G073, and that from the order upon the issues of undue in- fluence and fraud being case No. 6072. The granting (jf a new trial for want of evidence to su])p()rt the verdict is usually a matter almost entirely within the discretion of the trial court. Such order will not be reversed unless an abuse of discretion appears. Estate of Motz, 130 Cal. 500, [09 Pac. 291]; Bjorman v. Fort B. R. Co., 92 Cal. 501, [28 Pac. 591]. The record contains no substantial evidence that the testatrix was of imsf)unfl mind or otherwisj' incompetent to make a will at the time of the execution of the will in (|Uestion. The court very i)r()perly ordered a new trial nf that i>>iie. It is within the power IllinoLs Central R. R. Co. r. Foulks, 191 111. .')7, OO X. E. 890; Kiin.sjis City V. File, (>0 Kun. 157, o.') Par. .S77: May v. Hutterwortii, 1(X) Ma.ss. 7.5; Moreland v. Durocher, 121 Mich. 398, 80 X. W. 284, acronl. Peterson /•. Mid- dlesex & Somerset Traction Co., 71 N. J. L. 29(5, 59 Atl. 45() (overruled by Mocrwlorf v. X. Y. Telephone Co., 84 X. J. L. 747, 87 Atl. 473, decided under the Xr-w .Ic-rsey Practice Act, 1912, App. A, sees. 72, 73); liainlxTK ('. Inter- natifinal Ry. Co., 121 X. V. A|)p. Div. 1, 105 X. V. Siipp. (121 (l)Ut see Dra|)cr »;. IntcrhoroUKh Riipid Traii.Mit Co., 121 \. Y. Ajip. Div, 3.17. 108 X. Y. Supp. fWl), contrn. See u note to tin- principal ca.'^c in 27 L. R. \. (n. 8.), 209. — Ed. DE VALL V. DE VALL 485 evidence under the answer. (2) Because the court erred in admit- ting evidence against the objection of plaintiff. (3) Because the court erred in refusing to receive evidence offered by plaintiff upon the trial. (4) Because the verdict was contrary to law. (5) Because the verdict was contrary to the evidence. (6) Because the court erred in refusing to direct a verdict upon the motion of plaintiff to find and bring a verdict for plaintiff. February 14, 1911, being at the same term of the court, upon consideration of such motion, the court made the following order : " This cause coming on to be heard this daj', on the motion of plaintiff, asking that a judgment heretofore rendered herein to be set aside and a new trial granted, plaintiff appearing by her attorney, Thos. M. Dill, and defendant appearing by his attorney, A. S. Cooley, and the court having carefully considered and weighed all the evidence introduced on the trial of this case, and ha\nng considered the entire record herein, including the instructions given to the jurors, and it appearing that, among the instruc- tions given by the court to the jury, was the following, ' Upon the other hand, if the defendant has satisfied you bj^ a preponderance of the evi- dence that said M. C. Porter was not served with said notice on said 24th day of April, 1907, or that renewal of said notice at the October term of said court was not given to the said Porter, then you should find for the defendant,' and the court believing that said instruction was erroneous, under the evadence introduced on the trial of tliis case, and that said in- struction was prejudicial to plaintiff, therefore, because of the giving of said erroneous instruction as above quoted, and for no other reason or reasons, it is ordered and adjudged that the judgment heretofore rendered in this case be and the same is hereby set aside, and a new trial is hereby granted." From this order, defendant appealed, under Section 548, L. 0. L. Affirmed. Eakin, C. J.^ It thus appears that, although there was a motion to set aside the verdict, the court in its discretion [granted] such motion on the ground of error not assigned in it, and the contention of defendant is that the court had no authorit}'' to set aside a verdict upon its own motion, nor upon a ground not assigned in the motion. There is no bill of exception here, and the defendant does not contend that the instruction mentioned in the order was not erroneous. Therefore the only question to be considered is as to the power of the court to set aside a judgment and grant a new trial, either on its own motion, or upon a ground of error not as- signed in the motion. Although there seems to be some conflict ^ A part of the opinion is omitted, together with the opinion of McBride, J., denying a rehearing. — Ed. 4S6 MOTION FOR NEW TRIAL of opinion upon this question, the great weight of authority sus- tains the view that courts of general jurisdiction have inherent power to correct judicial errors for the purpose of promoting impartial administration of justice, and the right of a court to grant a new trial on its own motion is generally recognized. . . . The order of the court, vacating the judgment and granting a new trial, is aflirmed. Affirmed} [Smith, Action at Law, 2d ed., pp. 113, 129.1 Another incident which sometimes occurs during the trial, is the reservation of a point. This happens when some point of law is raised, the decision of which affects the fate of the cause, but, as there is no leisure to discuss it thoroughly at tiisi prius, the judge reserves it for discussion in the ensuing term, and, in such case, the court, before which the point is argued, consider themselves in the same situation as the judge was before whom it was originally raised, and, consequently, have power to order a verdict or a non- suit to be entered according as their decision on the jjoint may render fit. . . . A motion to enter a verdict or nonsuit purstiant to leave obtained for that purpose at the trial, is often, indeed, most often, made, con- currently ^vith one for a new trial, in hopes that, if the application fail in one shape, it may prove successful in the other. But there is this difference between the two motions, namely, that the party has a right to move for a new trial, and cannot be prevented from so doing; whereas a motion to enter a verdict or a non.suit never is pennitted unle.s.s the judge who tried the cause gave the defeated party leave, at the time of the trial, to make such application; for it has been already mentioned, that if a point be raised at nisi prius, and reserved for the consideration of the court in banc, the court, when that point comes to be discussed before it, has power to do whatever the judge who tried the cause ought to have done had he been then advised ui)on the law of the jjoint so raised before him. And, theref(jrc, if he ought to iiave directed the jury to find a |)arti(ul;ir verdict, the court will order such a verdict to be ' Se<' II note to the jjriiicip.'il (^t.sc in 40 L. H. A. (n. h.), '2\H. 'I'hf! rule of tli*- i)riiifi|)al cuhc [m.s l)ccn clmnncd l>y Htatutc in some jurisdic- ti«.rj». Sec IVirwiii v. JioHton Klcviited Ky. Co., HM Miuw. 22."^, 77 N. K. 709; I>.v.-lund I'. Rand, 2(K) Maw. 142, xr, N. K. 94H. Nf.w Thiai, ArrKii .ItT»(i.MKNT. Ah to the power of the trial roiirt to Rrant a n»'w trial after judKinent, see Chajiter XI, infra. — Ed. SOUTH EASTERN RAILWAY CO. V. SMITHERMAN 487 entered. If he ought to have recommended the plaintiff to sub- mit to a nonsuit, the court above will direct a nonsuit. But, if no point have at the time of trial been reserved by the judge, then the court in banc has no such authority, and can do no more than refer the case to a fresh jury, by making a rule for a new trial absolute. In South Eastern Railway Company v. Smitherman (reported London Times, July 17, 1883, cited Thayer, Preliminary Treatise on Evidence at the Common Law, 241 note), Blackburn, L. J., said : At common law all trials by jury were before the court in banc, as trials at bar now are. The court took the verdict according to what they thought the effect of the findings of the jury before themselves, and gave what they thought the proper judgment. When trials at nisi prius were introduced, at first only in the country before Justices of Assize, and, at a much later period, in Middlesex and London, where there were no assizes, before the Chief Justices of the Courts of Queen's Bench and Common Pleas and the Chief Baron, — the verdict was taken by the judge who tried the case at nisi prius, according to what he thought the legal effect of the findings, but he could not enter judgment. He returned to the court the verdict, and, on the fourth day of term, the verdict, as he returned it, was entered on the record in what was called the postea, and on that the court in banc gave judgment. A practice began at least as early as the beginning of the seventeenth century, by which the court in banc would entertain a motion, if made within the first four days of term, while the proceedings were, as it was called, in paper only, to stay the postea, and if it was made out that there had been any miscarriage at the trial, to set aside the pro- ceedings at nisi prius and grant a new trial. But they could do no more. However clearly it appeared that the verdict ought to have been entered for the other party, the court in banc could not enter it. The judge who tried the cause at nisi prius might by his notes amend the postea, but not the court. This defect was partially cured by a practice which grew up, by which the judge, with the consent of the parties, for he could not do it without, reserved leave to movet'n banc to enter the verdict the other way. This practice had, before the Common Law Procedure Act, 1852, become the established law. There was no reason why the motion should not, where leave was reserved, be in the alternative to enter the verdict according to the leave reserved, or to have a new trial, 488 MOTION FOR NEW TRIAL on the ground either of misdirection of the judge or anything else which amounted to a miscarriage on the trial. One well-recog- nized head of miscarriage was when the verdict was against the weight of evidence; where, if the court thought that, though the right direction in law was given, the jurj-^ had, either from misaj)- jjrehension or disregard of the direction, or not properly appreciat- ing and considering the evidence, found a verdict so unsatisfactory that it ought not to stand, and that the question should be sub- mitted to another jury, and for that reason granted a new trial. Now, I think, no doubt was ever entertained, at least, I am not aware of any case in which any was expressed, that the court, in considering whether the verdict was satisfactory' or not, looked at everything bearing on the conduct of the jury up to the time when the verdict was finally taken. If, by consent of the parties, anything was reserved for the court, that was to be determined by the court; but, whether it was reserved or not, could not jirevent the court from considering how the verdict on other points was obtained, and whether it was satisfactory or not. If there had been a bill of exceptions t.endered, the court would not entertain a motion for a new trial on any ground which might have been in- cluded in it, unless the bill of exceptions was abandoned, but the court would still hear a motion to set aside the verdict as against evidence.^ PROWELL V. NEUENDORF. Supreme Court of Michigan. 1905. (Reported 141 Michigan, 272.) Montgomery, J. The plaintiff Ijrought an action of ejectment to recover a strip of land clainicd by her to i)e a portion of a lot udrnittcdly owned and (occupied by her. Defendants claimed that a line had been established between ])laintiff's property and theirs by aKreernent and accjuiescence. The circuit ju(lg<' sul)nutte(l this fjuestiori of fact to the jury, who found for the i)l;iinti(T. Later, on a motion for a new trial, the circuit judge set aside the verdict for plaintiff, and without .any new tri.al directed a venhct for defend- ants and entered judgment thereon. This practice was without precedent ;iiid iinaiit li(»ii/e(l. There w.as no verdict u|tiiii which to ' H' to his personal property. Plaintiff distinctly testified that the subject-matter of his personal injuries was not referred to at the time of the settlement, except that tlefendant's agent stated that his claim in that respect could be settled later. That the settle- ment was limited to plaintiff's personal effects was testified to by another ^\"itness, plaintiff's niece, who was present at the time. Her testimony was substantially in accord with that given bj' plaintiff. Plaintiff' signed the written document evidencing the settlement, which refers solely to his personal injuries; but he testified that by reason of his injuries he was unable to read the same, that it appeared blurred to his vision, that the agent read it to him, and that he signed it in reliance upon his statement that it had refer- ence to his personal property. In this state of the evidence the court was not authorized to grant judgment notwithstanding the verdict.' 2. The only point made on plaintiff's appeal from the order granting a new trial is that it does not expressly appear therefrom that it was granted on the ground that the verdict was not sus- tained l)y the evidence and, as the record presents no errors in law to justify a new trial, the order should be reversed and the verdict reinstated, under the rule in Berg v. Olson, 88 Minn. 392, 93 N. W. 309, Fitger v. Guthrie, 89 Minn. 330, 94 N. W. 888, and Owens v. Savage, 93 Minn. 468, 101 N. \\ . 790. Our examination of tiie ' By Minn. Laws 189.5, o. 320, it is provided that: " In all rases where at the clo.sc of the testimony in the ca.sc tried a motion is made hy either party to the suit requesting the trial court to direct a verdict in favor of the i)arty inakinK such motion, which motion was denied, the trial court on motion made that judKuient he entared notwithstanding the verdict, or on motion for u new tri.-il, shall order judnment to l)e entered in favor of the party who was entitled to have a verdict directed in his or its favor; ant! the .'^upreme court of the state on apfieal from an order urantinn or denying a motion for a new trial in the action in which such motion was m.ade may order .'ind direct judg- ment t<) l>c entered in favor of the fKirty wlio w.-is entitled to have such venhct decided in his or its favor whenever it shall ajjpear from the t(>stimony that the party was entitled to have such motion uranted. " See also Laws l',ll.'{, c. '245 (Minn. Gen. Stats., sec. 7WS) Thin statute is constitutional. Sec Kcrn.in r. St. Paul City i{y. Co., 04 .Minn. 312, 07 .\. W. 71. — Ko. FORMS 493 memorandum attached to the order appealed from leads to the conclusion that it was in fact based upon the ground that the ver- dict was not sustained by the evidence, and, although it is not expressly and in so many words so stated, j^et it is sufficiently so indicated. It was therefore a discretionary order, within the rule of Hicks V. Stone, 13 Minn. 398 (434). The order of the court below is affirmed on both appeals.^ {Form of Notice of Motion for New Trial.) ^ In the Court of the County of , State of A. B., plaintiff, against C. D., defendant. Please take notice that on the affidavits of P. Q. and R. S. copies of which are hereto annexed, the undersigned will on the day of , 19 , at the hour of o'clock a.m. of the said day, or as soon thereafter as counsel can be heard, at the court-house in the city of in the said county, move the court for an order setting aside the verdict herein, rendered on the day of , 19 , and granting a new trial herein, on the grounds of misconduct of M. N., one of the jurors who rendered the afore- said verdict. Dated, X. Y., Attorney for Defendant. (Address.) To V. W., Attorney for Plaintiff. ' See Dalmas v. Kemble, 215 Pa. 410, 64 Atl. 559 (decided under a statute, Act of April 22, 1905, P. L. 286, similar to the Minnesota statute). Compare Bothwell V. Boston Elevated Ry. Co., 215 Mass. 467, supra, p. 341; Pattison v. Livingston Amusement Co., 156 N. Y. App. Div. 368, 141 N. Y. Supp. 588. The Federal courts are precluded by the Seventh Amendment to the Constitution of the United States from applying this practice. See Slocum v. N. Y. Life Ins. Co., 228 U. S. 364, 57 L. ed. 879, 33 S. Ct. 523; Young v. Central R. R. Co. of N. J., 232 U. S. 602, supra, p.»340. See an article by J. L. Thomdike, Esq., on " Trial by Jury in the United States Courts," in 26 Harv. L. Rev. 732; and an article by Professor Henry Schofield on " New Trials and the Seventh Amendment," in 8 111. L. Rev. 287, 381, 465. And see Reports of the Amer. Bar Assoc, Vol. XXXVIII (1913), 561. — Ed. ^ As to the necessity of notice of motion, see 14 Encyc. of PI. and Pr. 895. — Ed. CHAPTER IX. MOTIONS BASED ON THE PLEADINGS. Section I. Motion in Arrest of Judgment. PELICAN ASSURANCE COMPANY v. AMERICAN FEED & GROCERY COMPANY ei a^ Supreme Court of Tennessee. 1909. [Reported 122 Tennessee, 652.) Beard, C. J. The question here involved is the same that was considered and disposed of in Hall v. State, 1 10 Tenn., 366, 75 S. W., 716. In that case, as in this, the minute entry was that the de- fendant moved " the court in arrest of judgment and for a new trial "; and it was there held that, whether the motion was single, " embracing two distinct, if not incongruous, matters of proced- ure," or the entry was construed as the " equivalent of a recital of the two motions," yet the necessary inference would be " that the motion in arrest was first made, and . . . was disposed of first." In this condition of the record, the court applied the rule that the making of motion in arrest jirior to the motion for a n«>w trial wa.s a waiver of the latter motion, and the legal effect of this waiver was that the court on apjieal was " confined to error a.s.signed on the face of the record." ' In the case at bar errors are assignee 1 upon the action of the trial judge in admitting over objection incompetent testimony, in overruling a motion for pcn'inptory instructicjn, in giving certain instructions to the jury, and failing to grant recjuests that were sub- mitted. It will be observed that these errors, if committed, occurred in the trial of the cau.se, and would have constituted grounds of a motion for a new trial, made in the court below, to the » Kclley V. Bell, 172 Ind. 590, 88 N. E. 58, accord. GerlinR v. AKricultunil Ins. Co., 39 W. Va. <)H9, 20 S. K. (501 (where the motioriH were iimde sinml- tanoouHly aa in the priiiciiml cjum!). Jewell v. Hlaixironl, 7 Diiiiu (Ky.), 472 (where the motion for a new trial waa made 8nl)H0(ju('ntly to the motion in arr'nf ), contra. See WilliamH v. State, 121 ( la. .'i?'.), 49 S. Iv 089. See 2 Tidd, I'rartiff;, 9th ed., 913. — En. BAKER V. SHERMAN & MILLER 495 end that a retrial might be obtained, or, faiUng in this, then to preserve the same in the record, so that the ruhng of the trial judge in declining the motion might be preserved to the plaintiff in error. Railroad v. Johnson, 114 Tenn., 633, 88 S. W., 169. Resting upon matters extrinsic to the technical record, they could only be pre- served for review in this court by a properly filed bill of exceptions. If, as is contended by counsel for plaintiff in error, they can here be made the subject of investigation, by reason of the motion in arrest having been overruled, then we can see no distinction between that and a motion for new trial; for the very errors that are now made the subject of complaint are those which would have been properly raised on this latter motion. It is apparent that, to secure a reversal on account of these errors, it would be necessary to look beyond the " face of the record " into the evidence introduced. This cannot be done. It is well settled by the authorities that a motion in arrest of judgment lies alone for some error which vitiates the proceeding, or is of so serious a character that judg- ment should not be rendered. It " can only be maintained for a defect upon the face of the record, and the e\adence is no part of the record for this purpose." Bond v. Dustin, 112 U. S., 604, 5 Sup. Ct., 296, 28 L. Ed., 835; Van Stone v. Stillwell E. T. C. Co., 142 U. S., 128, 12 Sup. Ct., 181, 35 L. Ed., 961; 23 Cyc, 825. Applying this rule of correct procedure to the present case, it follows that the judgment must be affirmed.^ BAKER et al. v. SHERMAN & MILLER. Supreme Court of Vermont. 1901. [Reported 73 Vermont, 26.] RowELL, J.2 This is an action on the case for deceit in the sale of land. Plea the general issue and trial by jury. Verdict and judgment for the plaintiffs. The declaration originally contained but one count, which alleges that the defendants " sold and conveyed to the plaintiffs their 1 Nor on such a motion can advantage be taken of insufficiency of the evi- dence, Bond V. Dustin, 112 U. S. 604, 28 L. ed. 835, 5 S. Ct. 296; State v. Young, 153 la. 4, 132 X. W. 813, Ann. Cas. 1913 E, p. 70; Hubbard v. Rut- land R. R. Co., 80 Vt. 462, 68 Atl. 647; nor of a variance, Jacobs v. Marks, 183 111. 533, 56 N. E. 154, affirmed 182 U. S. 583, 45 L. ed. 1241, 21 S. Ct. 865. — Ed. * A part of the opinion is omitted. — Ed. 496 MOTIONS BASED ON THE PLEADINGS interest in " 1305 acres of timber land at such a price. The fraud alleged is, the knowingly false representation that the entire tract was situated within a natural basin, and bounded on the east, south, and west by the crest of a certain range of mountains, and that the entire tract situated within said basin and bounds was comprised within said tract of 13U5 acres, whereas 200 acres of said last-mentioned tract lay beyond the crest of said range, and 75 acres lying within said basin did not belong to the defendants and was not a part of the tract conveyed. The new count alleges that the defendants sold and conveyed to the plaintiffs " their interest in " that jiortion of lot 4 in range 6 in Jay that lies west of the crest of said range, which runs across it, at such another price, and fraudulently represented that said portion contained 55 acres, whereas it contained only about 20 acres. Neither count alleges that the defendants or either of them had or claimed to have any interest in said land or any part thereof, by possession, color, or othenAnse howsoever, nor that the plaintiffs or either of them were induced to believe or did believe that they had. . . . The defendants moved in arrest of judgment, for that the declaration does not allege that the defendants or either of them, at the time of the alleged sale and conveyance, or ever, had or owTied any right, title, or interest in or to the whole or any part of the land mentioned in the declaration, and that therefore it does not appear thereby that the plaintiffs have suffered any damage. The plaintiffs claim that the testimony incorporated into the bill of exceptions is a part of the record, and can be looked into on this motion, and that that shows that the defendants did have an interest in the land. But notliing is better settled than that the testimony is not a part of the record for this purix)se, and that on a motion in arrest for insufficienf-yof the declaration, only the declara- tion itself, and4he subsecjuent pleadings that may, and sometimes do, hell) it out, can be looked into. Harding v. Cragie, 8 Vt. 501, 508. The law of the subject is, that if the declaration omits to allege any fact essr^ntial to a right of action, and it is not implied in nor inferable from the finding of those that are alleged, a verdict for the plaintiff does not cure the defect. Thus, in a.ssumpsit, no con.sideration alleged and verdict for the plaintiff; judgment inu.'^t be arn'.sted, for finding th:it (Icftiid.iiit promised does not imply ;i finding of consideration for the pnnnise. So here, finding that tlu; defendants deceived the plaint iffs as alleged, furnishes BAKER V. SHERMAN & MILLER 497 no legal intendment that the defendants had an interest in the land, nor that the plaintiffs were damaged by the deceit, for they could not have been damaged by it unless the defendants had an interest, which is not alleged nor implied from the finding of any- thing that is alleged. The allegation is that the defendants sold and conveyed to the plaintiffs " their interest " in the land, not the land itself. It is said that this allegation is sufficient, for when one sells land to another, owTiership is implied and need not be alleged, and that so are the precedents for deceit in the sale of both real and personal estate. But they are so only when the thing itself is sold, not when only the right, title, and interest therein is sold, for in such case, neither in pleading nor elsewhere, does the law imply ownership in land nor in chattels; not in chattels, as showTi by Sherman v. Champlain Transportation Co., 31 Vt. 162, 175, and a note in 62 Am. Dec. 463; not in land, as shown by Cum- mings V. Dearborn, 56 Vt. 441. That was an action on covenants of title and warranty in a quitclaim deed; and it was held that the covenants did not enlarge the grant, but were only co-extensive with it, and that if the grantor had no interest in the land, the covenants were of no value. Nor do such covenants in such a deed estop the grantor from asserting an after-acquired title. Hanrick v. Patrick, 119 U. S. 156, 175. So the allegation here amounts to no more than that the defend- ants quitclaimed their interest to the plaintiffs, w^hich implies no title nor claim of title, but means only that the defendants con- veyed their interest, whatever it was; and in such a case, in the absence of an allegation of fraudulent representations as to title, caveat emptor applies. 8 Am. & Eng. Ency. Law, 2d ed. 53. It follows, therefore, that the motion in arrest must prevail, unless the plaintiffs are allowed to avoid it by amendment, which they ask leave to do, on the authority of Chaffee v. The Rutland R. R. Co., 71 Vt. 384; for they say that the testimony incorpo- rated into the exceptions shows that the defendants' ownership was proved. An amendment of this kind at this stage of a case should be allowed only when it is clear that the matter was an issue on trial, and as fully litigated as though it had been raised by the pleadings; for otherwise great injustice might be done to the defendant by being cast on an issue that he had no notice of and did not come prepared to try. Now although there was testimony on both sides tending to show claim and representation of ownership by the defendants, yet it came in in connection with, and as a part of, testimony that 498 MOTIONS BASED ON THE PLEADINGS was directed to the issues made by the pleadings, and does not appear to have been taken note of by either side as raising an issue as to claim and representation of title, which was a matter dehors the pleadings. In Chaffee v. The Railroad Company, it was apparent from the exceptions that the question was fully litigated, and that the amendment would present no new issue nor require any different proof. That cannot be said in this case, and there- fore leave to amend in order to avoid the motion is denied.^ CHAFFEE et al v. RUTLAND RAILROAD COMPANY. Supreme Court of Vermont. 1899. [Reported 71 Vermont, 384.) Taft, C. J. This action is brought to recover damages for the destruction of the plaintiffs' property by fire communicated by the defendant's engine. It is alleged in the declaration that the defendant so carelessly, negligently and imprudently managed its engine, that the plaintiffs' property was destroyed by fire communi- cated therefrom. There is no allegation that the defendant's engine was not properly equipped with suitable spark arresters and ash-pans, nor that the defendant permitted dry grass, weeds, etc. to accumulate on its road-bed. The defendant objected to the proof of such facts, that is, that the engine was not equipped with suitable spark arresters and ash-pans and the accumulation of dry gra.ss and weeds on its road-bed, and also to the charge, that if such facts were established, the plaintiffs had a right to recover. The members of the court are not agreed in respect to the case as shown by the record but concur in holding that if the declaration had contained the allegations of negligence in the construction or condition of the engine in the respects named, and in the accumula- tion of dry grass and weeds, there was no error in the admission of the testimony nor in the charge of the court. The question arises whether this court will permit such an amendment to be now made after judgment. The cause was fully tried a.s though such alle- ' Thf; rourt !it the noxt term Kr.'intcd ii venire de novo on torrns an to the puyrnerit of cohIh l»y iIk; |)liiiiitilTH and directed that if a new trial wa.s not want<'d on thoHc terniH, jiidKincnt on tlu; verdict should Ik' arrested. .\h to this, BCC infra, p. ."iH. Oimpare Rushton v. AHj)innll, 2 Douj?. 07'.); Reed v. Hrowninn, l.'JO Ind. .')7.'), .'JO N. 10. 70-1; Southern Ry. Co. v. Maxwell, 1 13 Tcnn. 4M, S'2 S. W. 1137. See Could, J'lcading, iiuinilton'o cd., 472. — Ed. CHAFFEE V. RUTLAND RAILROAD CO. 499 gations were in the declaration. It is expressly stated in the ex- ceptions that both parties gave testimony pro and con upon the questions of the defective spark arrester and ash-pan, and the accu- mulation of dry grass and weeds. Such testimony was admissible upon the question of whether the first was communicated to the plaintiffs' property by the defendant's engine. It is apparent from the exceptions that the questions were fully litigated. The course of the trial was the same as if the allegations had not been omitted and an amendment of the declaration will present no new issue nor require any different proof. V. S. 1148 authorizes a court at any time to permit either of the parties to amend a defect in the pleadings upon such conditions as the court prescribes. In Bates V. Cilley, 47 Vt. 1, an amendment was permitted after verdict and before judgment and also in Kimball v. Ladd, 42 Vt. 747, and see many cases therein cited. At common law the court had power to allow an amendment of the pleadings in any case until final judgment and after motion in arrest of judgment. Amendments after trial are allowed in order to conform the pleading to the facts proved. None of our cases go to the extent of permitting an amendment after judgment but the court under the statute V. S. 1148, clearly have that power. All amendments are in the discretion of the court and are allowed or refused as the court may deem most con- ducive, to the furtherance of justice. An amendment is not allowed if it introduces a new cause of action. An amendment in the case before us is only permitted in order that the pleadings may conform to the proof and for the purpose of sustaining the judgment, not reversing it. 1 Ency. PI. and Prac. 582. For as said by Redfield, C. J., in Bank v. Downer, 29 Vt. 332, " an amend- ment will cure error but cannot create it." The plaintiffs may amend their declaration by filing an amend- ment alleging the defendant's negligence in the construction or condition of the spark arrester and ash-pan of its engine, and in permitting an accumulation upon its road-bed, of dry grass, weeds, bushes, etc., and when such amendment is made the, Judgment may he affirmed, but without costs in this court. 500 MOTIONS BASED ON THE PLEADINGS THE CHICAGO AND ALTON RAILROAD COMPANY V. CLAUSEN. Supreme Court of Illinois. 1898. [Reported 173 IUi7wis, 100.] Cartwright. J.' Ajipelloo brought this suit against appellant to recover ilamages for injuries allegetl to have been sustained l)y the starting of a train on which he was a passenger, while he was attempting to get off at appellant's station at Gardner. Illinois. There was a judgment for appellee, which has been afhrmed by the Appellate Court. It is argued at much length that the trial court improperly overruled a demurrer to the first original count and five amended counts of the declaration upon which the case finally went to trial. No error has been assigned upon such ruling on the denmrrer, either in the Appellate Court or this court, and none could be so assigned, for the reason that after the demurrer was overruled the defendant pleaded the general issue and thereby raised an issue of fact, which was tried. It has always l)een the rule in this State that if a party wishes to have the action of a court in overruling his demurrer reviewed in this court he must abide by the demurrer. By pleading over he waives the demurrer and the right to assign error upon the ruling. Lincoln r. Cook, 2 Scam. 61; Wann v. McGoon, id. 74; Nye v. Wright, id. 222; Dickhut v. Durrell, 11 111. 72; Walker v. Welch, 14 id. 277; American Express Co. v. Pinckney, 29 id. 392; Gardner v. Haynie, 42 id. 291; Ambler V. Whipple, 139 id. 311: Dunlaj) v. Chicago, Milwaukee and St. Paul Railway Co., 151 id. [{)[); Grier v. Gibson, o() id. 521; Hull v. Johnston, 90 id. (i04. Defendant made a motion in arrest of judgment, which was overruled, ant! that is assigned for error; but iiaving once had the judgment of the court on its demurrer it could not again invoke it for the same reasons by motion in arrest. After n judgment overruling a demurrer to a declaration there can be no motion in arrest (A judgment on account of any exception to the declaration that might have Ix-en t.aken on tin* argument of the deininrer. Rouse r. ( 'ounty oi Pecjria, 2 Gilm. 99; (^uincy Coal Co. /•. Hood, 7 III. 'IS; American Express Co. v. Pinckney, mijjra; Independent Onler (jf .Mutual Aid r. Paine, 122 111. G25.2 ' A [lart of the opinion i.s oniittcd. — Mi). * Hoi' IvIwiihIh I'. Hliint, 1 Sfnmno, 42.'), in wliiili tlic followinj; npinion wiih jpvcn: " I'cr curiam, .\ftcr jmlKmetit on (IrMiiirrrr, tlir tlifi-iid.uil hIimII not CHICAGO AND ALTON" RAILROAD COMPANY V. CLAUSEN 501 While the defendant, by pleading over, waived its demurrer and the right to assign error upon the ruling of the court on the de- murrer, it did not waive innate and substantial defects in the declaration which would render the declaration insufficient to sus- tain a judgment, and the question whether it is so far defective may be considered under the assignments of error. The question which may be thus presented is not as broad as those questions which may be raised by demurrer, for the reason that defects in pleading may sometimes be aided by the pleadings of the opposite party, or be cured by the Statute of Amendments and Jeofails, or by intendment after verdict. The objections made to the various counts of the declaration are, that the statements therein are too general and indefinite in failing to show how the starting of the train operated to throw plaintiff from it and in what manner it was started, and that the various counts allege certain duties on the part of the defendant, and charge the neglect and violation of other duties, and the doing of other acts foreign to the duties so alleged, as the cause of the supposed injuries. So far as the declara- tion is defective in the respects complained of, the defendant's plea of the general issue, of course, could not aid or supply an}' omission or informality therein. It is also true that the Statute of Amend- ments and Jeofails does not extend to cure defects which are clearly matters of substance. It provides that judgment shall not be reversed for want of any allegation or averment on account of which omission a special demurrer could have been maintained, but it does not protect a judgment by default against objections for matter of substance. Many such objections, however, have come to arrest the judgment on return of the inquiry, for an exception that might have been taken on arguing the demurrer. The parties cannot be said to come as amici cur', nor shall any body tell us that the judgment we gave on mature deliberation is wrong; it is otherwise indeed in the case of judgment by default, for that is not given in so solemn a manner; or if the fault arises on the writ of inquiry or verdict, for there the party could not allege it before. How V. Godfrey, Mich. 4 Geo. 2." And see White's Admr.x. v. Central Vermont Ry. Co., 87 Vt. 330, 89 .\tl. 618. But see Stewart v. Terre Haute, etc., R. R. Co., 103 Ind. 44, 2 X. E. 208, in which the opposite view is taken. See also Field v. Slaughter, 1 Bibb (Ky.), 100, where it was held that the court, having improperly overruled the de- fendant's demurrer to the plaintiff's replication, properly sustained a motion in arrest of judgment. The defendant's failure to demur or his interposing a demurrer on other grounds of objection does not preclude him from relying on a particular objec- tion on a motion in arrest of judgment. Southern Ry. Co. v. Max^vell, 113 Tenn. 464, 82 S. W. 1137. — Ed. 502 MOTIONS BASED OX THE PLEADINGS always been cured, at the common law. by a verdict. At the common law, independently of any statute, the rule was and is " that where there is any defect, imperfection or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessaril}' required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give or the jury would have given the verdict, such defect, imperfection or omission is cured by the verdict." 1 Chitty's PI. 763. This rule was quoted and approved in Keegan v. Kinnare, 123 111. 280, and Chicago and Eastern Illinois Ilailroad Co. v. Hines, 132 id. 161. The intendment in such case arises from the joint effect of the verdict and the issue upon which it was given, and if the declaration contains terms sufficiently general to comprehend, by fair and reasonable intendment, any matter necessary to be proved, and without proof of which the jury could not have given the verdict, the want of an express statement of it in the declaration is cured by the verdict. Under this rule a verdict will aid a defective state- ment of a cause of action, but will never assist a statement of a defective cause of action. 1 Chitty's PI. 681. Where the declara- tion and the issue joined upon it do not fairly impose the duty on the plaintiff to prove the omitted fact, the omission will not be cured, Joliet Steel Co. v. Shields, 134 111. 209, and if, with all the intendments in its favor, the declaration is so defective that it will not sustain a judgment, such defects may l)e taken advantage of on error. Wilson v. Myrick, 26 111. 34; Schofield v. Settley, 31 id. 515; Chicago and Eastern Illinois Railroad Co. v. Hines, su})ra; Culver V. Third Nat. Bank, 64 111. 528. The rule was applied in Haynes v. Luca.s, 50 111. 436, and the judgment was reversed. That was an action in debt on a contract for the sale of land, and a plea of //?7 flebet, which wji.s bad, had been filed, but it was said that if the plea had been good the defect would be ground of error. So in Kipf) V. Lichtenstein, 79 111. 358, the declaration was so defective that it woulfl not sustain a judgment, and it was held that the objec- tion might be taken on error. That wa.s an action of debt on a 8uj)poK('d statutory liability, and the statute ha. DEAN V. ROSS 505 fact, and a verdict is rendered, a motion in arrest, on the ground that no cause of action is shown, comes too late. Saulsbury v. Alexander, 50 Mo., 142. For if facts requisite to constitute a cause of action are necessarily inferable from the pleadings taken in their entirety, judgment will not be arrested after verdict. Corpenny v. Sedalia, 57 Mo., 88; Edmondson v. Phillips, 73 Mo., 57.1 , ^ _ DEAN V. ROSS. Supreme Judicial Court of Massachusetts. 1901. [Reported 178 Massachusetts, 397.] LoRiNG, J.2 1. The defendant's first contention is that she is entitled to have judgment arrested because it is not alleged in the declaration that the plaintiff owned or was in possession of the bonds which it is alleged that the defendant converted to her own use. But such an objection is taken too late; it does not go to the jurisdiction of the court. Commonwealth v. Mackay, 177 Mass. 345. The case of Carlisle v. Weston, 1 Met. 26, relied on by the defendant, was decided before it was provided by statute that no motion in arrest of judgment should be allowed unless it is for a cause which affects the jurisdiction of the court.^ St. 1852, c. 312, » See Elliot v. Stuart, 15 Me. 160. But the defect may be taken advantage of on a motion at the trial to dismiss the complaint. Scofield v. Whitelegge, 49 N. Y. 259; Tooker v. Arnoux, 76 N. Y. 397. But see Grace v. Nesbitt, 109 Mo. 9, 18 S. W. 1118. A defect in the pleading of one party in omitting a necessary allegation is cured by an express admission in a subsequent pleading of the same party. Brooke v. Brooke, 1 Sid. 184; Slack v. Lyon, 9 Pick. (Mass.), 62. As to whether a party can supply an omission in one pleading by an allega- tion in his own subsequent pleading, see Marine Trust Company v. St. James A. M. E. Church, 85 N. J. L. 272, 88 Atl. 1075. But see Kearney County Bank v. Zimmerman, 5 Neb. (Unof.), 556, 99 N. W. 524. Defects of form, which cannot be taken advantage of on a general demurrer, cannot, of course, be taken advantage of on a motion in arrest of judgment. Stephen, Pleading, Will, ed., *161. And on a motion in arrest of judgment after verdict, even at common law, the successful party's pleadings will be construed liberally in his favor. Bur- gess V. Brazier, 1 Str. 590; 1 Chitty, Pleading, 16th Am. ed., *262. Under the codes, objections to defects on the face of the complaint, not taken by demurrer, are waived, except the objections of lack of jurisdiction and of a failure to state facts showing a cause of action. — Ed. ^ The statement of facts and a part of the opinion are omitted. — Ed. * This statute (now R. L. c. 173, sec. 118), provides: " A judgment shall not be arrested for a cause existing before the verdict, unless such cause affects the 506 MOTIONS BASED ON THE PLEADINGS § 22. Gen. Sts. c. 129. § 79. Pub. Sts. c. 167, § 82. Moreover in this case the fact appeared in evidence, which did not appear in Carlisle v. Weston, namely, that the property converted belonged to the plaintiff; and in adtlition to that, in this case it was assumed in the charge of the judge that the bonds were confessedly the prop- erty of the plaintiff, and to that statement the defendant made no objection. . . . Exceptions overruled. HOLLIS ct another r. RICHARDSON. Supreme Judicial Court of Massachusetts. 1859. [Reported 13 Gray, 392.1 Writ of error on a judgment of the court of common pleas in an action of contract brought by Gideon D Richardson upon two promi-ssory notes made by the plaintiff in error, and payal^le to Eliphalet W. Richardson, but not purporting to be paj'able to order. In that action, each count was in this form: " And the plaintiff says, the defendants made a promissory note, a copy whereof is hereto annexed, payable to Eliphalet Wharff Richardson, and the plaintiff is the owner of said note, and tiie defendants owe him the amount of said note and interest thereon." Copies of the notes were annexed to the declaration. The defendants filed an affidavit of merits, but were afterwards defaulted, and judgment was rendered againt them for the amount claimed. The error assigned was, that the notes were not negotiable, and were not made to Gideon D. Richardson, and he could main- tain no action at law thereon. Plea, in mdlo est en'atmn. Shaw, C. J. The ground of this writ of error is, that the declara- tion shows no cau.se of action in the plaintiff. The judgment having been rendered upon the default of the defendant, the case is not within the provisions of the new practice act, which prohibit the taking of objections in arrest of judgment or by writ of error, for causes existing before verdict, in any case in which a verdict has been rendered. St. LS52, c. 312, §§ 22, 77. It was not a question of the admission or rejection of evidence, which, if not made at the trial, cannot be taken afterwards; because juriudiction of the court. After the (Icfciidiiiit h.is appcind mikI miHwered to (he rri<'rit« le i)art. At all events, the Court will not arrest the judgment, but only grant a venire de novo. Wherever a bad count is joined with a good count, and general damages are given, a venire de novo may ix' awarded: Corner v. Shew, 4 M. & \\ . 1G3; Leach v. Thoma.s, 2 AL tV: W. 427; Ayrey v. Fearnsides, 4 M. & W. 108. [Parke, li. - This is not the case of a bad count and a goo^ are bound to find on every part of each. Corner v. Shew, 3 M. & W. 350, governs the present case. The plea of non assumpsit raises a distinct issue on each and every part of the counts. [Parke, B. — In Doe d. Lawrie v. Dyeball, 8 B. & C. 70, the Court said, " It is a settled rule, that if the same count contains two demands or com- plaints, for one of which the action lies, and not for the other, all the damages shall be referred to the good cause of action, although it would be otherwise if they were in separate counts." Therefore, if this had been the case of a count in assumpsit for a cause of action which could not be joined with another good cause of action, the judgment would not be arrested; but here there are two counts, both containing good causes of action. A venire de novo only issues on a supposed misconduct of the jury in making a defective finding.] Pollock, C. B. The rule must be absolute. We are bound by the case of Corner v. Shew, in which the Court took time to con- sider their judgment. In that case there was a misjoinder of counts; and, the jury having found general damages, the Court arrested the judgment. I cannot distinguish between the mis- joinder of several counts and the case of one count consisting of several causes of action which ought not to have been joined. Parke, B. I am of the same opinion. This case is decided by Corner v. Shew. It is a misjoinder of causes of action in the same count; and, according to the authority of Comer v. Shew, the objection cannot be cured by a venire de novo, since it is a matter in which the jury are bound to assess the damages on even*- part of the cause of action. It is true, that, if the jury had been directed to find for the defendant on the second count, the defect would have been cured. So, likewise, if a nolle prosequi had been entered as to that count; but general damages having been assessed upon the whole, the case falls within the principle of Comer v. Shew, and we have no reason to doubt the, propriety of that decision. Alderson, B. Corner v. Shew determined, that where two counts which are good, but cannot be joined, are improperly joined, the course is to arrest the judgment. Here the declaration consists of two counts, each of them good, but the second containing a cause of action which cannot be joined either with the other cause 512 MOTIONS BASED ON THE PLE.U)INGS of action in that count or T^nth the first count. It is, in truth, the same as three counts, one of which cannot be joined with the other two. RoLFE, B. There never can be a venire de novo, except where the jury must tiiul iHfferently, in order to make the record con- sistent. It is true, that, if the jury had found for the defendant on the second count, the objection might have been cured; but then they were of opinion that the plaintiff had made out his case upon the whole declaration, and they were bound to find accordingly. Rule absolute.^ POSNETT V. MARBLE. Supreme Court of Vermont. 1889. [Reported 62 Vermont, 481.] This was an action for slander, the declaration containing five counts. Plea, the general issue with notice of special matter in justification. Trial by jury. Verdict for the plaintiff. The defendant moved in arrest of judgment for the insufficiency of the declaration. Judgment for the plaintiff. MuNSON, J.2 . . . The several counts purport to be for words spoken upon different occasions. A general verdict was rendered upon all the counts. The second, thirtl and fifth counts are held to be insufficient, and the court has no moans of determining upon which counts the damages were in fact assessed. ' If the jury find for the i)huntiff on one of two counts improperly joined and for the defendant on the other, the judgment will not be arrested. Kightly V. Birch, 2 M. & S. 533; Sellick v. Hall, 47 Conn. 260. And where the jury find for the plaintiff on two counts improperly joined but assess the dainuKes 8e{)arately, judKuicnt will be arrested only on one of the counts. Hancock c. Haywood, ',i T. H. 4.'i3. .\8 to arnendiuK the verdict in ca.se of misjoinder of counts, see Eddowes v. Hoi)kin.s, 1 Doug. .170; Lusk /'. Ha-stiiigs, 19 Wend. (X. Y.), G27. See also a note to 2 Wms. Saund. (Sir K. V. Wnis. ed.) [). 4U3. See 1 Chitty, FleadinK, Kith .\m. ed., ♦ 22S. Under the co. ' The Htateinent of factsisnbridn<-il und apart of thcopiuiuuisomitted. — Kn. POSNETT V. MARBLE 613 This being the situation, what disposition shall be made of the case ? The courts are not agreed as to the procedure. One course is to end the suit by arresting the judgment. Another course is to award a venire de novo. In Haselton v. Weare, 8 Vt. 480, the court arrested the judgment, saying that this was in accordance with the settled rule in England. The court had before it English cases in which this course had been taken, but the English practice up to that time was far from uniform, and the other method has since prevailed. One of the cases relied upon by the court in Haselton V. Weare, was Holt v. Scholefield, 6 T. R. 691. But this case was ex]3ressly overruled by Leach v. Thomas, 2 M. & W. 427, soon after Haselton v. Weare was decided. In Leach v. Thomas, it was said that this point did not appear to have been at all argued in Holt v. Scholefield; and in Corner v. Shew, 4 M. & W. 162, Parke, B., in stating that the point had been considered doubtful before the decision of Leach v. Thomas, expressed surprise that such a doubt should have existed, inasmuch as the matter had been provided for by rules of court in both the King's Bench and the Common Pleas as early as 1654. In Empson v. Griffin, 11 Ad. & E. 186, the court of Queen's Bench followed the decision in Leach v. Thomas, and awarded a venire de novo. The rule adopted in Haselton v. Weare has never been cordially approved. In Wood v. Scott, 13 Vt. 42, the court considered the question settled, but Redfield, J., referred with evident sympathy to the regret expressed bj^ Lord Mansfield in Peake v. Oldham, Cowp. 275, that such a rule had been established. In Camp v. Barker, 21 Vt. 469, and in W^hitcomb v. Wolcutt, 21 Vt. 368, the court vigorously criticised the rule, and indicated its intention to make all reasonable intendments in favor of a verdict when some of the counts were good. In the latter case, the court referred to the modern English practice of awarding a venire de novo where it could be done, as the true course, but considered that this could not well be done in a court of error. In Joy v. Hill, 36 Vt. 333, the motion in arrest was disposed of on the ground of a misjoinder of counts, the question whether the expressions in more recent cases had abrogated the law as declared in Wood v. Scott being recog- nized but not considered. In 1865 the difficulty was removed by statute as far as declarations containing only counts for the same cause of action are concerned. R. L. 913. In Dunham t'. Powers, 42 Vt. 1, and in Kimmis v. Stiles, 44 Vt. 351, decided since this enactment, the counts not being for the same cause of action, it was considered that judgment should be arrested. 514 MOTIONS BASED ON THE PLEADINGS In ^^ew of the misapprehension underwhich the rulewas adopted, the position afterwartls taken in regard to it, and the modern vindication in the EngUsh courts of the earlier and better practice, we are incHned to extend the benefit of a new trial to cases like this. Upon a mistrial of this character, we think the law may con- veniently and properly give the litigants a more substantial justice than is afforded by an arrest of judgment. That the proposed action may projjerly be taken by this court is apparent from the settled practice of many courts of error. The nature of the pro- ceeding is fully stated in Comer v. Shew, above cited. The theory is that the defect is in the verdict. The order is made, in the language of the ancient rule, " as upon an ill verdict." By sending back the case an opportunity is given to have the damages as- sessed upon the good counts only. The plaintiff will also be en- titled to the usual privileges of amendment under the rules of the trial court. Judgment reversed. N^ew trial granted on condition that plaintiff pay defendant^ s costs heretofore incurred in the court below, and take no costs for that time in the event of a final recovery; and if a new trial is not desired upon these terms, plaintiff to become non-suit. Cause remanded} ' In Dean v. Cass, 7.3 Vt. 314, 50 Atl. 1085, the court granted a venire de novo for misjoinder of causes of action; and in Baker v. Sherman, 73 Vt. 26, 50 Atl. 033, su])ra p. 495, the court granted a venire de novo for a defect in the declaration. But these cases are opposed to the common law rule. If the jury find sei)arately on the several counts, the plaintiff is entitled to judgment on the good counts. And in a criminal action, a general verdict of guilty is construed to be a verdict of guilty on each count of the indictment. See State v. Huggins, 84 N. J. L. 254, 87 Atl. 630. Compare Lewis v. Niles, 1 Root (Conn.), 433. If several causes of action, some of which are defective, are stated in the same count, and the jury find for the i)laintilT with general damages, the I)l:iintifi" is entitled to judgment on the verdict, because it will be presumed tliat the judge directed the jury to di.srcgard the defective allegations. See 1 C'hitty, Pleiuiing, Kith .\m. ed., *7I4. Compare Hagar f^. Norton, 188 MuHH. 47, 73 N. E. 1073. If there are several counts all for the same cause of action, and a general verdict for the plaintiff, the general verdict may l)e applied to the gfKHl count, and judgment entered thereon. Smith v. Cleveland, 6 Met. (.Muiw.), .332; Aldrirh r. Lyman, V, K. I. '.IS. See 1 Chitty, IMeading, KUli Am. e, too, the verdict may be amended where the eviden. * AlthnUKh it W!iH generally held at common law that the dcfi-ndant was not entitled to judKnient lum oliMnntc. vrralirlo, the court minhl arre.st (he judnment on a motion for judgment /(. o. r. Schermerhorn r. Schermerhorn, 5 Wend. (S. Y.), r,i:i; 'Injw v. 'Jhoiiuw, 70 Vt. fVSO, 41 Atl. 6.02. — Ed. MURPHY V. RUSSELL 517 Taft, Circuit Judge. ^ . . . Section 5328 of the Revised Statutes provides that: " When, upon the statement in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, although a verdict has been found against such party." It was in accordance with this section that the court below entered the judgment here complained of. The contention on be- half of the plaintiff is that this section applies only after a verdict has been rendered, and that until then the court has no power to enter judgment. There is no such limitation in the words of the section, and it would seem to be absurd that when, upon the state- ments of the parties to the pleadings, one or the other is entitled to judgment, the court should go through the useless ceremony of submitting to a jury immaterial issues in order to enter judgment upon the pleadings without regard to the verdict. . . . The judgment of the circuit court is affirmed, with costs.^ MURPHY V. RUSSELL & others. Supreme Judicial Court of Massachusetts. 1909. [Reported 202 Massachusetts, 480.], Tort, for personal injuries received by the plaintiff while in the employ of two of the defendants, Merrill and Emerson, from falling down an elevator shaft in a building o\vTied by Russell, the other defendant. Writ dated January 16, 1907. The case was tried before Hitchcock, J. A verdict was ordered for the defendants under the circumstances stated in the opinion; and the plaintiff alleged exceptions. The case was submitted on briefs. . . . LoRiNG, J.^ At the close of the evidence in this case the defend- ant Russell and the defendants Merrill and Emerson asked the judge to rule that on the pleadings and the evidence the plaintiff was not entitled to recover. The judge granted the request and ordered a verdict for the defendants. . . The objection that the facts alleged in the declaration do not entitle the plaintiff to judgment can be raised by asking that a ver- * The statement of facts is abridged, and a part of the opinion in which the defendant's plea is examined and held sufficient is omitted. — Ed. 2 See Kime v. Jesse, 52 Neb. 606, 72 X. W. 1050. —Ed. ' A part of the opinion is omitted. — Ed. 518 MOTIONS BASED ON THE PLEADINGS diet be ordered for the defendant as well as by demurrer. Hervey V. Moseley, 7 Gray, 479. Hubbard v. Mosely, 11 Gray, 170. Nowlan v. Cain, 3 Allen, 201, 203. Oliver v. Colonial Gold Co., 11 Allen, 283. Oulighan v. Butler, 189 Mass. 287, 289. See also Tracey v. Grant, 137 Ma.-^s. 181. This practice presumably grows out of the rule introduced in the practice acts of 1851 and 1852 (now R. L. c. 173, § 118), that judgment shall not be arrested for a cause existing before verdict unless the cause affects the jurL^^diction of the court. . . . Exceptions overndcd. ' 1 In some jurisdictions the defendant may move orally at the trial to dismiss the action on the ground of want of jurisdiction or of failure to state a cause of action. Tooker v. Arnoux, 76 N. Y. 397. But see Littlefield v. Railroad Co., 104 Me. 126, 71 Atl. 657. In some jurisdictions the defendant may move to exclude all evidence under the declaration when it shows a want of jurisdiction or fails to state a cause of action. Rothe v. Rothe, 31 Wis. 570. — Ed. CHAPTER X. JUDGMENTS. Section I. Form and Validity. [Form of Entry of Judgment for Plaintiff on a Verdict.] ^ In the Queen's Bench. The day of , in the year of our Lord 18 (date of declaration.) Berks to wit. A. B. by E. F. his attorney complains of C. D,, who has been summoned to answer the said A. B. by virtue of a writ issued on the day of , in the year of om- Lord 18 , out of the court of our lady the queen, before the queen herself at West- minster. For that (&c. Copy the declaration from these words to the end, and the plea and subsequent pleadings, to the joinder of issue). Thereupon the sheriff is commanded that he cause to come here, forthwith, twelve &c., by whom &c. and who neither &c., to recog- nize &c., because as well &c.^ Afterwards, the jury between the parties is respited until the day of {return of distringas or habeas corpora,) unless her majesty's justices assigned to take the assizes in and for the county of Berks shall first come, on the day of (day of nisi prius,) in the said county, according to the form of the statute in such case made and provided, for default of the jurors, because none of them did appear. Afterwards, on the day of (day of signing final judgment,) come the parties aforesaid by their respective attornies aforesaid; and the said justices of assize, before whom the said issue was tried, have sent hither their record had before them in these words: Afterwards, that is to say, on the day and at the place within contained, before sir , knight, one of the justices of our lady the queen assigned to hold pleas before the queen herself, and sir , knight, one of the justices of our lady the queen, assigned to take the assizes in and for the county of Berks, according to the form of » See Chitty, Forms, 6th ed. (1847), pp. 45, 95, 106. — Ed. ^ The full statement of the words omitted may be found in 3 Bl. Com., App. X. — Ed. 519 520 JUDGMENTS the statute in such case made and pro\'ided, come as well the within- named plaintiff as the within-named defendant, by their respective attornies \\-ithin mentioned; and the jurors of the jury, whereof mention is within made, being summoned also come, who, to speak the truth of the matters \\'ithin contained, being chosen, tried and sworn, according to the form of the statute in such case made and provided, say upon their oath that the defendant did promise, in manner and form as the plaintiff hath within complained against him; and they assess the damages of the j^laintiff, on occasion of the not performing the promises within mentioned, over and above his costs and charges by him about his suit in this behalf expended to £ , and for those costs and charges to forty shillings. Therefore, it is considered that the said A. B. do recover against the said C. D. his said damages, costs and charges by the jurors aforesaid in form aforesaid assessed; and also £ for his costs and charges by the court here adjudged of increase to the said A. B. with his assent, which said damages, cost and charges, in the whole, amount to £ ; and the said C. D. in mercy, &c. [New Jersey Judgment Record.] ^ In the Supreme Court of New Jersey. A.B.I vs. \ Judgment Record. C.D.J C. D., the defendant in this cause, was summoned to answer unto A. B., the plaintiff therein, in an action at law upon the follow- ing complaint: (Copy complaint). The defendant answered as fcjllows: (Copy the answer and further pleadings, if any). This action was tried before Justice M. X. with (or without) a jury, at the ("ireuit, (;n December 10, 1011. The cause having been heard and submitted to the jury, they return tlieir \'erdict as follows: {('opij verdict, gencrtd or spcriid). Whereupon it is adjudged that tlie plaintiff recoverof thedefend- ant the sum of dollars (S ) and his costs, which are taxed at the sum of dollars (S ), making in the wlujle the sum of dollars ($ ). Judgment entereil Decemlier , I'.ijl. > Sfio New .I.rsiy I'r.i.licr Ad, I'.H'-'. S.li.,liilr H (I':iiii|.li I,. 1012, j)]). lOS, 409). — Ki. CHURCH V. CROSSMAN 521 [Modem English Form of Judgment.] ^ 19 — . [Here put the letter and number.] In the High Court of Justice, Division. Between A. B., Plaintiff, and C. D., Defendant. 30th November, 19 The action having on the 12th and 13th November, 19 been tried before the Honourable Mr. Justice with a special jury of the county of , and the jury having found [state findings], and the said Mr. Justice having ordered that judgment be en- tered for the plaintiff for £ and costs: Therefore it is ad- judged that the plaintiff recover against the defendant £ and £ for his costs. [Arkansas Judgment.] ^ Richard Roe, plaintiff, | against ^ Judgment. John Doe, defendant. J The parties appeared by their attorneys, and the defendant filed a demurrer to the complaint, and the questions of law arising thereon being heard, it is adjudged by the court that the complaint is insufficient, and the plaintiff refusing to plead further, it is ordered, considered and adjudged by the court that the complaint be dismissed and that the defendant recover of the plaintiff his costs herein expended. CHURCH V. CROSSMAN. Supreme Court of Iowa. 1875. [Reported 41 Iowa, 373.] This action is brought upon a judgment of a justice of the peace in St. Lawrence County, New York. The court sustained a demurrer to the petition, and the plaintiff refusing to amend, judgment for costs was rendered for the defendant. Plaintiff appeals. The further facts appear in the opinion. 1 See Rules of the Supreme Court, 1883, Appendix F (Annual Practice, 1915, p. 1497). — Ed. 2 See Kirby, Digest of the Statutes of Arkansas, p. 1663. — Ed. 522 JUDGMENTS Miller, Ch. J. The transcript of the judgment sued on is as follows : " State of New York, St. LawTence Co., town of Gouvemeur. In Justice's Court, before J. B. Preston, Esq., J. P. Daniel Church, February, 16th, 1874. Judgment rendered in favor of against plaintiff against defendant on the above cause on contract Henry C. Crossman on process personally served. Debt S200.00. Costs 2.40. Judgment $202.40. St. Lawrence County, ss. I certify that the above is a true copy of a judgment rendered by and before me, and now remaining unsatisfied upon my docket. Witness my hand this 11th day of April, 1874. J. B. Preston, Justice of the Peace.' ^ This judgment was duly authenticated by the clerk of the Su- preme Court of the county, but as no question is made upon the authentication, the certificate is omitted from this opinion. The court sustained the demurrer on two grounds, as follows: " 1. The transcript does not show that any judgment was ever rendered by any court." " 2. The transcript does not show the findings or adjudication of the court in said case." It is .settled by the decisions of this court, that no particular form of words is necessary to show the rendition of a judgment. See Barrett v. Garragan, 1() Iowa, 47, and cases cited in the opinion. Where the time, place, parties, matters in dispute, and an adjutlica- tion thereon appear it is sufficient. Il)i(l. In the transcript before us we have the time, place, parties, matter in dispute and the result, conci.sely and dearly stated. It is stated that " judgment is rendered for the i)hiintiff against the defendant "; that such judgment is in the cause entitled " Daniel Church V. Henry C. ('n>s.sman "; that the judgment is rendered " on contract "; that such judgment wa.s rendered upon " process p^THonally wrved," and the amount of the judgment is clearly Htate(), and on that day the referee rendered judgment in favor of the pl;iinti(Ts, the judgment being in the following form: ' .\ p.'irf of till- opinion is oniittcd. — Ed. FLORIDA ORANGE HEDGE FENCE CO. V. BARNHAM & CO. 527 " In the Circuit Court, 7th Judicial Circuit of Florida, Orange county. A. G. Bamham & Co. v. 1 CoUis Ormsby et al., doing > business as the Florida Or- J ange Hedge Fence Co. On the 17th day of February, a.d. 1890, the above cause came on to be heard, and after argumentof counsel and a careful examina- tion of the testimony, I find that the defendants are indebted to the plaintiffs in the sum of eight hundred and thirteen dollars and thirty cents as principal, and seventy-five dollars and eighty-three cents interest. It is therefore ordered and adjudged that the plain- tiffs do recover of and from the defendants the sum of eight hun- dred and eighty-nine dollars and thirteen cents, together with the further sum of twenty-eight dollars and forty-five cents (costs) of suit. H. C. Harrison, Referee." The defendants then moved the referee to set aside his find- ings and to grant a rehearing of the cause upon the following grounds: ... " 6th. Because the . . . finding and judgment of the referee is vague and indefinite." Which motion the referee denied and refused. From this judgment the defendants take writ of error. . . , Under the sixth ground of the motion for rehearing, the de- fendants contend that the judgment is void because it is vague and indefinite in that it fails, in the body of the judgment, to give the names of the plaintiffs in whose favor it is rendered, or the names of the defendants against whom it is pronounced, they being referred to therein simply as the " plaintiffs " and " defendants "; and that no valid execution can issue thereon to enforce the same, as it does not show from whom the adjudged amount is to be collected. There is no merit in this contention. The declaration gives accu- rately the names of each defendant; the judgment gives the style of the cause at its head with sufficient definiteness to show without doubt that the " plaintiffs " and " defendants " referred to therein are the same individuals named and designated as such in the declaration and throughout the proceedings composing the record in the cause. While it is best that a judgment should be so com- plete within itself as that the officer issuing the process to enforce it can see at a glance the parties for and against whom such process is to be issued, yet, if the parties for and against whom a judgment is rendered are so referred to therein as that a reference to its 528 JUDGMENTS caption, or to the pleadings, process and proceedings in the action, will make certain the names of the parties thus referred to, it is sufficient. Every judgment may be construed and aided by the entire record. 1 Freeman on Judgments (4th ed.), sec. 50a; Smith /•. Chenault, 48 Texas, 455; Little v. Birdwell, 27 Texas, 688; Hays v. Yarborough, 21 Texas, 487; Wilson & Wheeler v. Xance & Collins, 11 Humph. (Tenn.) 189. Finding no errors in the record, tiie judgment of the court below is affirmed.' LYNCH V. FREELAND. Court of Appeals of Kentucky. 1803. [Reported Sneed, 269.] It is assigned as an error in this suit that " the writ and declara- tion are in case, and the verdict and judgment are in debt." The court finds that the writ is trespass on the case in the usual form; and the declaration also seems to be in case, although it is not altogether in the usual form, and, perhaps, is deficient in sub- stance. It is at least certain that it is not a declaration in debt. But the verdict and judgment could only have been authorized by a declaration in debt. In particular, the judgment is for a certain sum and interest thereon from the time it became due until i)aid, whereas, in an action on the case, the verdict and judgment could only have been for an aggregate sum in damages, including inter- est, until the time they were rendered, and not for any interest thereafter. Therefore, it is considered by the court that the judg- ment aforesaid be reversed and set aside, the cause be remanded to the circuit court for new proceedings to bo had, to commence by amending the declaration, and the plaintilT recover of the defend- ant his costs in this behalf expended, which is ordered to be eertilied to the circuit court. ^ 1 Ah to the necofwity of dcsiKn.itinn the; parties for and !iKain.st whom judg- ment is rendered, see 1 Hluck, Judnineiits, 2d «'(l., sec. 110; 1 Freeman, Judg- ments, 4th ed., sec. 50a; 11 Kn(;yc. of PI. & Pr. 948. As to the necessity of desinnatiri^ j)roi)erty which is the siilijcct of a judg- mcnt, see !>• S<'pulve(hi v. Hau^h, 74 C'al. UiS, .') Am. St. U<'p. 4.")."); I{osciithal I. Matthews, HX) f'al. 81, :i4 Par. (LM; Coleman r. H<'cl, 7.1 la. :?()4, :i<) N. W. .'»!(), U .\iu. St. Ilep. 4H4; 1 Black, .luiltrtiiiiits, 'id cd., sec 117; I I'VcMiiian, JudRments, 4th ed., sec. SOr. — Ki>. * A» to the necessity of conformity of the judgment t-o the plcadinns, see Rc>'nold» V. Stockton, 140 U. S. 254, 35 L. ed. 4G4, 11 S. Ct. 773; Suchc v. PICKWOOD V. WRIGHT 529 GROSVENOR v. DANFORTH. Supreme Judicial Court of Massachusetts. 1819. [Reported 16 Massachusetts, 74.) This was a writ of error, brought to reverse a judgment of the Court of Common Pleas for this county, rendered in an action of assumpsit, wherein the said Danforth was original plaintiff, and the said Grosvenor was original defendant.^ . . . The error relied on was that judgment was rendered for 54 dollars 19 cents, damage, although the ad damnum in the original \\Tit was twenty dollars only; and for this the former judgment was re- versed.2 PICKWOOD V. WRIGHT. Common Pleas. 1791. [Reported 1 Henry BUickstone, 642.1 In this action of assumpsit the plaintiff took a verdict for 611 I. which was really the sum due to him, and entered up judgment for that sum besides costs, but the damages laid in the declaration were but 600 /. A writ of error was brought on this judgment, and Kerby, Serjt. obtained a rule to show cause why a remittitur of the 11 /. should not be entered. Adair and Le Blanc, Serjts. argued against the rule, saying, that after judgment signed and error brought, it was too late to enter a remittitur for the sum which caused the error; and they cited the case of Sandiford v. Bean, B. R. Hil. 13 Geo. 3, as an authority in point. Kerby, on the other side, insisted, that as long as the record remained in court it might be amended. The court thought it was reasonable to allow the amendment, and therefore made the rule absolute upon pa3'ment of the costs of the writ of error. Wallace, 101 Minn. 169, 112 N. W. 38tj, 11 L. H. A. (n. s.), 803, 118 Am. St. Rep. 612; Munday v. Vail, 34 N. J. L. 418; 11 Encyc. of PI. & Pr. 868. — Ed. ^ A part of the case is omitted. — Ed. 2 See Safford v. Weare, 142 Mass. 231, 7 N. E. 730; 1 Black, Judgments, 2d ed., sec. 138; 11 Encyc. of PI. & Pr. 899. — Ed. 530 JUDGMENTS L.\BAHX BRICK CO. r. HECHT, impleaded with LK\FGREEN CONSTRUCTION COMPANY. Appell.\te Court of Illinois. 1912. [Reported 169 Illinois Appellaie Court Reports, 447.] Smith, J.* The appellee brought suit against the Leaf green Construction Co. and Albert S. Hecht in the Municipal Court of Chicago on a note for the sum of S2,000, bearing interest at the rate of six per cent per annum, dated July 27, 1908, payable thirty days after date to the Leafgreen Construction Co., and by it endorsed, signed by Albert S. Hecht. The defendants were duly served. The Leafgreen Construction Co. did not appear and default was entered against it. Mr. Hecht appeared and contested the suit. The issues were submitted to a jury and the jur>' found for the plaintiff and assessed his damages at the sum of $2,102; juflgment was entered on the verdict against both defendants and Mr. Hecht appealed. . . . It is urged that the ad damnum being for S2,100, it was error to enter judgment for §2,102. It is true that the entering of the judg- ment for a larger sum than the ad damnum was error, but the ap- pellee having filed a remittitur in this Court of two dollars, it is ordered that the remittitur of the sum in excess of S2,100 be allowed. Winslow V. People, 117 111. 152. We also think that the maxim de minimis non curat lex applies to this error. \'illage of Morgan Park V. Knopf, 210 111. 453; Rolsch v. Young, 111 111. App. 34; Undenvood v. Whiteside Co. Bldg. & Loan Association, 115 111. App. 387; Spunner v. Roney, 122 111. App. 19. We are of tin- opinion that the other errors argued are untenable and need no mention. The judgment is affirmed. Affirmed? TAYLOR V. JONES. SuPREMK Judicial Court of New Hampshire. 1860. [Reported 42 New Hampshire, 25.1 Tre8PA.s.s, for taking siiM(lr>' articles of i)ersonal property, of the alleged value of §25-1.50, in the city of New York, and converting the same to the defendant's use, to tiie damage of the plaintiff the ' A purt of thi: (jpiiiion in oinittcirii(in in i^ivi'ii. — I j>. CRAWFORD, FLINN, AND BRENNER V. BEARD AND BEARD 535 the plaintiff a new trial. In adding to the amount of the verdict, the court was assuming the province of the jury. But the provisions of the statute before referred to, by no means warranted the court or jury in allowing the plaintiff five per cent damages. The right to recover damages on inland bills did not exist at common law. It exists alone by statutory provision, and that provision only extends, in the language of the statute, to " domestic or inland bills which shall be protested for non-pay- ment." As the bill of exchange in this case was not protested, it did not come within the foregoing provision. The judgment of the circuit court must, therefore, be reversed. But as the defend- ant in error proposes to remit the excess in the amount of the judg- ment, we will render the judgment in this court, which the court below should have rendered. The case of Anderson v. Tarpley, 6 S. & M. 507, warrants us in so doing. The judgment of the circuit court of Holmes county is reversed, and judgment rendered here for the amount of the verdict rendered by the jury, with interest thereon from the date of the verdict. Defendant in error will pay the costs in this court.^ Section II. Rendition and Entry. CRAWFORD, FLINN, and BRENNER v. BEARD and BEARD. Supreme Court of Oregon. 1885. [Reported 12 Oregon, 447.] Thayer, J.- This is an appeal from a decree rendered by the Circuit Court for the county of Linn, in a suit brought by the said respondents against the said appellants, to subject certain real property to the payment of three several judgments obtained by the said respondents severally against the appellant John Beard, in actions at law in said Circuit Court. . . . Two of the said judgments were obtained by default, and entered by the clerk of said Circuit Court in vacation, without any order of the court, and the third was entered by the said clerk upon con- fession. The appellants' counsel deny the validity of said judg- ' As to the necessity of conformity of the judgment to the verdict or findings, see 11 Encyc. of PI. & Pr. 904. — Ed. * A part of the opinion is omitted. — Ed. 536 JUDGMENTS ments, and claim that the statute authorizing a judgment to be entered in such a case is unconstitutional. . . . The view I am inclined to adopt in adjusting the rights of the parties to the controversy-, renders it necessary to consider first the question as to the validity of the alleged judgment against John Beard. It is contended upon the part of the appellants that the entry of judgment by default or upon confession, involves the exercise of judicial power, and that, as all jutlicial power in this State is required to be vested in certain courts, the legislature had no authority to confer any such power upon the clerk. The decisions of other courts under similar pro%'isions of statute or organic restrictions arc conflicting. The point of difference be- tween them is a disagreement as to whether such entry is a judicial or ministerial act. If I were required to decide the abstract ques- tion I should be very much inclined to hold that the rendition of judgment, in all cases, was a judicial act. The mere entry of judgment, no doubt, is a ministerial duty, but it seems to me that before such entry can be made there must be an adjudication either that the facts admitted, or the confession and statement in the particular case, entitle the party to a judgment. But our statute upon the subject has been in force for nearly twenty years. It may Ije said to have been acquiesced in by the bar, and it has tacitly been upheld by the courts. It has become a rule of prac- tice, and if i)ronounced invalid now would cau.^e disturbance of property' rights, and occasion great mischief. When an act of the legislature has been so long recognized as binding, and important affairs of the community affecting individual rights have been transacted in acc(irdance with its provisions, it should not \)c dis- turbed unless it i)lainly and uncciuivocall}' conflicts with the organic law. .\n act which lias been sanctioned l)y the com- nninity ought not to !)(■ declared imconstitutionai by the courts, when the question is in aii\- degree (loulilful. \\'liate\'er, there- frjre, my own private notions u])on tiie subject ar(\ so long as I am not p(^sitively certain of their correctness, I feel constrained to hold that such judgments are valid.' . . . The chief justice is of the opinion that tli<' statute^ conferring ujxjn clerks power to enter a judgment in such a case i.s nncon- stitutional and xoid, and that the maxim coiiiinnius < rror fdcit jus is inap|)lie;il)|e. l'ea>e r. Teck, IS Mow. f)!)?. « Tulliot i;. GarretstJii, 31 Ore. •2rA\, 10 Via: «)7.H, nrronl. — Eu. H. GUND & COMPANY V. HORRIGAN 537 H. GUND & COMPANY v. HORRIGAN et al. Supreme Court of Nebraska. 1898. [Reported 53 Nebraska, 794.] Error from the district court of Adams county. Tried below before Beall, J. Affirmed. Ryan, C. This action was begun in the district court of Adams county to subject to the payment of a judgment certain real prop- erty claimed by William and Catherine Horrigan as a homestead. On January 19, 1893, there was a trial, resulting in findings of certain facts, among which were the findings that William and Catherine Horrigan had a homestead interest in the real property, subject and second to a mortgage of $1,400 and accrued interest thereon; that a conveyance of William and Catherine Horrigan to their co-defendant, Peter Horrigan, was in fact and law a mort- gage, which was subject and inferior to the claim of plaintiff, H. Gund & Co., and not a lien upon the premises. While these find- ings were followed by an order directing that judgment be entered upon them, there seems to have been no such judgment rendered at that time. On May 16, 1894, there was filed in this case a paper, which, though more pretentious in its designation and scope, may be treated as a motion for an entry of judgment nunc pro tunc. Notice of the pendency of this application was served on the attorneys for Gund & Co., by whom a special appearance was filed July 2, 1894, objecting to the jurisdiction of the court for the reason that no summons had been served on their client, and for the further reason that the court had lost jurisdiction of this case. On July 3, 1894, the record discloses that the cause was submitted to the court upon the evidence, oral, wTitten, and documentary, which had been under consideration originally, and that the court thereon made a finding that the property was of the value of S3,400, and that because of the mortgage thereon of $1,400 there was no balance above the homestead exemption sub- ject to the judgment in favor of H. Gund & Co. There was thereupon entered a decree that the judgment in favor of H. Gund & Co. was not a lien on the premises, and the homestead rights of William and Catherine Horrigan were quieted against said judg- ment. In Van Etten v. Test, 49 Neb. 725, it has been held that where, in fact, a judgment was rendered but not recorded, the court, at any time afterward, had power, independently of statu- tory authority, nunc pro tunc, to enter a proper judgment against 538 JUDGMENTS the defendant upon due showing in a proper proceeding. The facts in this case justified the entry of a judgment nunc pro tunc, and in legal effect there was but the entry of such a judgment. There has been pointed out no irregularity in the exercise of this power, and we therefore conclude that no such irregularity exists. The judgment of the district court is accordingly Affirmed} CURRIER V. THE INHABITANTS OF LOWELL. Supreme Judicial Court of Massachusetts. 1834. [Reported 16 Pickering, 170.1 This was an action on the case upon St. 1786, c. 81, to recover double damages for injuries sustained by the plaintiff in conse- quence of being precipitated into an excavation, while travelling on a public highway in Lowell. . . . A verdict was returned by the jury, for the plaintiff. The defendants moved for a new trial, because the instruction to the jury was erroneous in point of law. At the present term of the Court, the death of the plaintiff, on Saturday, after the commencement of the term, having been suggested, it was moved by the counsel for the defendants, that the action should be dismissed. The counsel who were for the {plaintiff contended, that judgment should be entered up as of some day of this term before his decease. . . . Putnam, J., delivered the opinion of the Court.- In regard to the motion of the defendant to dismiss the action, on account of the death of the plaintiff, we think that the law upon this subject is well stated in Tidd's Pract. (1st Am. edit.) S40. " If either party after verdict, had died in vacation, judgment might have been entered that vacation, a.s of the preceding term, and it would have l>een a good judgment at common law, as of the preceding term; though it would not be so upon the statute > See Creed v. Marshall, ICO X. C. 304, 70 S. E. 270; IS Encyc. of PI. ,S: Pr. 458. But entry nunc pro tunc will not 1)0 allowed to prejudice a third party who hiiH iKicoine owner of the i)roperty alTecle N. W. lOSl, IT) L. II. A. (s. H.), (IM2; 1 I'reernan, .IiKlnnients, Ith ed., hcc. tit). Ei», * The Htaternent of fiictH in ftl»ridK<'d and a part of the opinion in which it wua held that the iualruction wua correct, is omitted. — Eu. CURRIER V. THE INHABITANTS OF LOWELL 539 of frauds in respect of purchasers, but from the signing. And if either party die after a special verdict, and pending the time taken for argument or advising thereon, or on a motion in arrest of judgment, or for a new trial, judgment may be entered at common law after his death, as of the term in which the postea was returnable, or judgment would otherwise have been given nunc pro tunc; that the delay arising from the act of the court may not turn to the prejudice of the party." And although there can be no appearance for the party who has deceased, yet the court will hear from any one of its officers, as an amicus curiae, any suggestions as to the merits. Ilsley's Case, 1 Leon. 187. In Oades v. Wood- ward, 1 Salk. 87, the attorney for the plaintiff was permitted to enter the judgment as of a preceding term, although the party died in the vacation. The death of the party was not considered as a revocation of the power to confess the judgment. If the party died at the same term when the suggestion was made, the court would not take any notice of it, but proceed to enter up the judg- ment. And in that case the court entered up judgment in 22 Car. 2, as of Michaelmas term, 20 Car. 2, when the party who had died was in full life, the cause having been pending from that time, but no continuances having been entered. That proceeding was held to be well warranted by the common law and by statutes. Crispe V. Jackson, 1 Sid. 462. The court will go back to the time when the judgment might have been rendered on the verdict, if no motion had been made which prevented it. Tooker v. Duke of Beaufort, 1 Burr. 147; Mayor of Norwich v. Berry, 4 Burr. 2277. It was stated at the argument, that the plaintiff deceased on Saturday after the commencement of this term. And we are all of opinion, that the judgment may legally be rendered as upon some day of the term when he was in full life. . . . Judgment according to verdict.^ 1 See Stickney i-. Da\ns, 17 Pick. (Mass.), 169; Wilkins v. WainwTight, 173 Mass. 212, 53 N. E. 397; Schaeflfer v. Coldren, 237 Pa. 77, 85 Atl. 98. In Clark & Leonard Investment Co. v. Rich, 81 Neb. 321, 115 N. W. 1084, 15 L. R. A. (n.s.), 682, the court said: " There are two classes of cases in which it has been held proper to enter judgments and decrees nunc pro tunc. First, those cases Ln which the suitors have done all in their power to place the cause in a condition to be decided by the court, but in which, owing to the delay of the court, no final judgment has been entered. The second class embraces those cases in which judgment, though pronounced by the court, has from accident or mistake of the officers of the court never been entered on the court records. Where the case has been fully tried, and the court takes it under advisement, 540 JUDGMENTS Section III. Judgmoits by Default. ANDREWS V. BLAKE. Common Pleas. 1790. [Reported 1 Henry Blackslone, 529.] This was an action of assumptiit on a hill of exchange, in which the tlefentlant let judgment go by default. In consequence of which a rule was granted to show cause vfhy it should not be referred to the prothonotary to ascertain the damages and calculate interest on the bill, without a ^^Tit of incjuiry. Kerby, Serjt. shewed cause, contending that the court could not dispense with a ^^Tit of inquiry in an action of damages; and he stated the principle to Ije, that the intervention of a jur}- was necessary in all cases, where the debt really due did not appear ui:)on the face of the declaration. Lawrence, Serjt. in support of the rule, relied on the case of Rashleigh v. Salmon (1 H. Bl. 252) where on a judgment by default on a promissory note, the same reference was made to the pro- thonotary as was desired in the present instance. The court said, that as it would be the means of saving expence to the parties, as the amount of the bill appeared on the face of it, and the interest might l)e exactly calculated, they thought it right to make the rule absolute, which was accordingly done.' (luring which one of the parties dies, a judgment will bo entered nunc jno tunc as of the date of the case being submitted to the court, in order that no prej- udice shall result on account of the death of the party, and the same rule obtain.s where a party is prevented from entering up a judgment on a vertlict in liLs favor on account of a motion for a new trial, during the i)endency of which the party dies. 1 Freeman, Judgments (4th ed.), sec. 5S. Den v. Tomlin, 3 Har. (N. J.), 14, 3.5 Am. Dec. 52.5. A court which has ordered a judgment, which the clerk has failed or neglected to enter in the record, has power after the tenn at which it was rendere', J. The piaintifT in hi!=; complaint alleged that the defendants R. B. Knapp, William Overaker and J. W. Lingenfelter were indebted to the plaintiff in the sum of eleven hundred and sixty-four dollars and fifteen cents, due by account, and promised to pay the same, and that said account is for goods sold and tlelivered to the defend- ants during the years 1879 and 1880, and that no part thereof had been paid, and demanded judgment for the amount alleged to be due and for costs, (tc. Sunmions was served upon the defendants by publication, and at the return term, no answer having been filed, judgment by de- fault and inquiry was rendered against the defendants for the want of an answer, and at the spring term, 1882, a jury was empaneled to inquire of the damages. The plaintiff introduced one Overaker, who testified that he bought the articles set out in the complaint as agent of the defend- ants, and they were worth the amount charged. The defendants, upon cross-examination of this witness, pro- posed to show by him " that the defendants organized as the Thomasville Gold and Silver Mining Company, and afterwards bought the articles as an incorporated company," and stated that they offered to prove this with a view of showing that the plaintiff was only entitled to recover nominal damages. The plaintiff objected to the evidence, the objection was sustained, and defend- ants excepted. The defendants proposed to show further, by the same witness, that the defendant Lingenfelter was president of the comjjany incorporated in the state of Pennsylvania, and that the defendant Kiiai)f) was trcjisurcr und secretary, and that they as oflficers on beludf of .said company gave instructions to the witness to buy the goods, with the view of taking the position (if true) that the defendants were only liaidc for nominal damages. Objection by the plaintiff wjus sustained, and the defendants excepted. The plaintiff then introduced as a witness his clerk, who liad made out the account su<'d on, and who testifiecj tjiat it was cor- rect, and the defendant Knapp. with the defendant (,)veraker, came LEE V. KNAPP 545 into the store and told witness to let said Overaker have whatever he called for. Defendants' counsel then proposed to ask this wit- ness " if he did not charge the articles in the books to the Eureka Mining Company, and if he did not understand that the articles were sold to the Eureka Mining Company when they were de- livered — stating that the evidence was offered with the view (if true) of insisting that the plaintiff was only entitled to nominal damages." Objection by the plaintiff was sustained by the court, and the defendants excepted. There was a verdict for the plaintiff for the amount claimed in the complaint. Judgment; appeal by defendants. Ashe, J. The exceptions taken by the defendants to the ruling of His Honor in excluding the evidence offered bj^ them were prop- erly overruled by the court. The defendants proposed to prove that the articles alleged to have been purchased by them were not bought by them, but by one or the other of the two corporations, in one of which they held official positions. The evidence was of such a character that, if the facts proposed to be proved had been set up in an answer filed b}' them and sustained by proof, it would undoubtedly have defeated the plaintiff's action. And it is settled that on an inquiry of damages upon a judgment by default, nothing that would have amounted to a plea in bar to the cause of action can be given in evidence to reduce the damages (Garrard v. Dollar, 4 Jones, 175), and the reason given for the rule is, that to allow such evidence after a judgment bj- default on an inquiry of damages, would take the plaintiff by surprise and pre- vent him from meeting the defendant upon equal terms with respect to the evidence, whereas when such defense is set up in the answer, the plaintiff has notice of the defense and may prepare to meet it. The plaintiff alleged in his complaint that the goods mentioned therein were bought b}' the defendants, and the judgment by de- fault admits all the material allegations properly set forth in the complaint, and of course everjiihing essential to establish the right of the plaintiff to recover. Any testimony therefore tending to prove that no right of action existed against the defendants, or denying the cause of action, is irrelevant and inadmissible on the inquiry of damages. Garrard v. Dollar, sujrra. In this case the action was in nature of assumpsit for goods sold and delivered, and the specific articles were not set forth in the complaint. The judgment by default admitted the plaintiff had cause of action against the defendants and would have been en- titled to nominal damages without any proof; but in seeking 546 JUDGMENTS substantial damages, he was required to make proof of the delivery of the articles and their value. This the plaintiff did, and there was no competent evidence offered by the defendants to reduce the damages. The evidence offered by them only went to the cause of action, which being admitted by the judgment by default, the phiintiff was entitled to recover the value of the amount of goods proved to have been delivered. Swepson v. Sunmiey, 64 N. C, 293; Parker v. House, 66 X. C, 374. There is no error. The judgment of the superior court is aflfirmed. No error. Affirmed.^ HOPKINS et al v. LADD. Supreme Court of Illinois. 1864. [Reported 35 Illinois, 178.] Appeal from the Circuit Court of Kendall county; the Hon. Madison E. Hollister, Judge, presiding. . . . Breese, J.2 This was an action of debt on an ordinary replevin bond brought by the sheriff of Kendall county for the use of Ward against the obligors. The court gave judgment on the defendants' demurrer to the plaintiff's dechiration for the amount of the penalty of the bond, and proceeded to assess the damages, where- upon the defendant objected to an assessment of damages without a jury. The court overruled the ol)jection, to which the defendant exceptetl, and has brought the case here and assigns this a.s one of the principal errors. By section 15 of the practice act, it is provided, in all ca.ses where interlocutory judgment shall l)e given in any action brought upon a penal bond or upon any instrument of writing for the payment of money only, and the damages rest in comi)utation, the court may refer it to the clerk to a.s.sess and report the damages, and may enter final judgment therefor without a writ of inquiry and without imf)ann<'ling a jury for that pur[)()se; and in all other actions where judgment shall go by default, the plaintiff may have his damages as.sesscd l)y the jury in court. Scates' Comp. 2()1, 262. This was the general law up to February 14, 1S()3, on which day the legislature paaaud this law: In all suits in the courts of record ' Compare Martin v. N. Y. & N. E. R. R. Co., 02 Conn. :«1, 2.5 .\tl. 239; Cook I'. Hkdton, 20 111. 107. — Ed. * The Htutcinent of fiu-tH and a part of the o|)inioii are omitted. — Ed. RAYMOND V. DANBURY & NORWALK R. R. CO. 547 of this State upon default, where a writ of inquiry has heretofore been required to assess the damages, it shall be lawful for the court to hear the evidence and assess the damages without a jurj^ for that purpose; provided that, if either party shall claim a jury, the damages shall be assessed as heretofore. Sess. Laws of 1863, p. 47. But it will be observed that in 1857, a special law applicable to the thirteenth judicial circuit was passed, authorizing the court without a jury, to assess damages in all cases of default. Scates' Comp. 637; and by an act passed February 18, 1859, it was pro- vided that the practice in the Circuit Court of Kendall county, should be the same in all respects as that in the thirteenth judicial circuit. Session Laws, 1859, page 58. This is a mere matter of practice, none will deny, and being so, the assessment of damages could be made by the court without a jury. The idea that a party has a constitutional right to have a trial by jury is not controverted. Here was no trial in any sense of that term. The defendant has declined putting his case on trial by abiding the judgment on the demurrer. The inquiry afterwards involved no consideration of any right of the defendant. His position was fixed by the judg- ment on the demurrer, no issue of fact was presented. The law of 1859 conferred on the Circuit Court of Kendall county full au- thority to asssess the damages even against the defendant's objec- tions, and there was no error in that respect. . . . Judgment affirmed. RAYMOND V. THE DANBURY & NORWALK RAIL- ROAD COMPANY. Circuit Court of the United States, District of Connecticut. 1877. [Reported 43 Connecticut, 596.1 ^ Trespass on the case: brought to the Circuit Court of the United States for the District of Connecticut. The defendants suffered a default, and the plaintiff moved for a hearing in damages before the jur^^ The motion was argued at the September Term, 1876, before Shipman, District Judge. Shipman, J. 2 This is an action of tort to recover damages for an injury to the plaintiff, arising from the negligence of the defend- 1 Reported also Fed. Cas. No. 1159.3, 14 Blatchf. 133. — Ed. * A part of the opinion is omitted. ^ Ed. 548 JUDGMENTS ants. The defendants have suffered a default, and have thereby admitted a cause of action as alleged, but not the alleged extent of the injury, and the question now before the court is as to the tribunal by which the quantum of damages is to be ascertained. The plaintiff insists that he has a constitutional right to have the questions of fact in regard to tlamages determined by a jury, while the defendants assert that, in accordance with the practice of the state courts in Connecticut, the damages are to be assessed by the court. The seventh amendment to the constitution of the United States provides that " in suits at common law. where the value in con- troversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re- examined in any court of the United States, than according to the rules of the common law." By the first clause of the amend- ment, the right of trial by jury, in common law actions, was guar- anteed. The right and the same right of jury trial which then existed was to remain undisturbed. In some of the state con- stitutions the same idea is expressed by the phrase " shall remain inviolate." By the common law, at the tlate of the adoption of the con- stitution, the trial of all issues of fact must be by a jury. By issues of fact are meant questions of fact, as distinguished from questions of law, which the result of the pleadings in each case shows to be in dispute or controversy between the parties, and a jury trial in i.s.sues of fact was tlie right of the litigant. In pursuance of the constitutional right guaranteed by the seventh amendment, Con- gress provided, in the twelfth section of the act of September 24th, 17^i9, that the trial of all issues of fact .shall, in all .-^uits, except those of equity and of admiralty or maritime jurisdiction, be by a a jury. But the a.s.se.ssment of damag(\s upon a default, either in actions of tort or of contract, stood upon a different footing from the trial of i.ssues of fact. In the early history of the common law the sul)- ject of the jiscertaiiiment of damages was in some confusion. The courts frefpiently fixed the amount of damages on a judgment by default and on demurrer. Kolle's Abridgment, tit. Damages. And " tlujugh the justices use to ;iw.ard iii(|uest of damages, when they give judgment by defiiult, yet they mny give daiiuiges if they will." S«?dgwick on I ):uMages, 701: \inv.. I );images I. Courts had also tlu* riglit ot" revising iln- .'inimnil of daniages which had been assessed upon a wiil <>f iii<|inr\. RAYMOND V. DANBURY & NORWALK R. R. CO. 549 In 1765, the date of the pubhcation of the first volume of Black- stone's Commentaries, the practice had become settled that upon a default damages should be assessed upon a writ of inquiry by a sheriff's jury, but " a practice was established in the courts of King's Bench and Common Pleas, in actions where judgment is recovered by default upon a bill of exchange, or a promissory note, to refer it to the master or prothonotary, to ascertain what is due for principal, interest and costs, whose report supersedes the neces- sity of a writ of inquiry." 3 Black. Com., note on p. 397. In 1848, before the enactment of the statute of 15 and 16 Vict., in regard to the ascertaiimient of damages by a master in actions of contract, it is said, in Whitaker v. Harold, an action of covenant, 12 Jurist, 395, that the court of Queen's Bench had the power to assess damages on demurrer or default \\dthout the intervention of a jury. The assessment of damages by a jury in actions of tort was how- ever a matter of practice and not of right. Chief Justice Wilmot held in 1770, as had been previously declared in 1764, that a writ of inquiry, in an action of tort, is an inquest of office, to inform the conscience of the court, which could itself have assessed the damages, without any inquest. Beardmore v. Carrington, 2 Wils., 244; Bruce v. Rawlins, 3 Wils., 61; 2 Finlason's Reeves's History of English Law, 610. ... The practice in this state at the date of the adoption of the con- stitution, in regard to the assessment of damages, is easily ascer- tained. Judge Swift, in his System, published in 1796, says: — " Our courts possess the same power to assess damages as a jiuy in England, upon a writ of inquiry issued to the sheriff for that pur- pose. There, in these cases, the court must issue a WTit to the sheriff, conmianding him by twelve men to inquire into the damages and make return to the court, which process is called a XNTit of inquiry. The sheriff sits as judge, and there is a regular trial by twelve jurors to assess the damages. This mode of proceeding must be productive of expense and delay, and the practice of this state, introduced by our courts Anthout the authority of a statute, of assessing the damages themselves, without the intervention of a jury, is one of the many instances in which we have improved upon the common law of England." 2 Swift's System, 268. This practice of the courts was afterwards sanctioned by statute (Revision of 1821, sect. 59, p. 50), and has remained the law of the state ever since. 550 JITDGMENTS The practice of the United States courts in the different circuits has not been uniform. The more common method has been to assess damages by a jury, upon a writ of intiuiry, but it is beheved that the practice has conformed to the usage of the state in which the Circuit Court was held. 2 Abbott's Practice, 50. In this district, neither the custom of calUng in a marshal's jury to assess damages, nor the assessment by a petit jury under the direction of the court, has prevailed. The conclusion is, that the assessment of damages by a jury upon a default is matter of practice and not of right; and that the assessment should be made in this case accorcUng to the uniform practice of the state courts. Let the damages be assessed by the court, or if the parties agree, by the clerk, as committee to find and report the facts and the amount of damages.^" Section IV. Judgments by Confession. HAZEL, Assignee of MONCUR, v. JACOBS. Court of Errors and Appeals of New Jersey. 1910. [Reported 78 New Jersey Law, 459.1 Reed, J. This writ brings up a judgment entered upon a find- ing of the trial judge sitting without a jury. The action was brought in the Cuml)crland County Circuit Court and resulted in a judgment for the plaintiff. The action below was brought to recover the amount of a judgment entered uixm a promis.sory note before a justice of the peace in the State of Delaware, which judg- ment was duly docketed in the Superior Court of said state at Dover, in the county of Kent. The note upon which the judgment was entered was given to one Frank Moncur, and l)y liiiii assigned to William H. Hazel, who cau.sed the judgment below to be (hereafter entered. The judgment was entered by virtue of a warrant of attorney, and the following is a copy of the note and the warrant : " I, (leorge W. Jaecjbs, promise and ol)lige myself, my heirs, executors or administrators, to p;iy I'rank Moncur, his executors, ' r'rntml, dr., R. R. Co. v. Mf.rri.s, (>H Tex. 49, 'A S. W. \r,7, ronlra. See 20 L. R. A. (.N.B.), 1; 21 Cyc. 110. — Eu. HAZEL V. JACOBS 551 administrators, or assigns, the sum of seventy dollars (S70.00) lawful money of the State of Delaware with lawful interest, for value received, on or before the first day of November, a.d. 1889. " And further, I do hereby authorize and empower any justice of the peace within the State of Delaware or elsewhere to enter judgment on the above obligation without process, against me, my heirs, executors or administrators, at the suit of the said Frank Moncur, his executors, administrators or assigns, at any time after the date hereof, with stay of execution till the first day of Novem- ber, a.d. 1889, and I do hereby release all and all maimer of error or errors in any such judgment and in the execution to be issued thereon. " In witness whereof, I have hereunto set my hand and seal this first day of May, a.d. one thousand eight hundred and eighty-nine. " George W. Jacobs. [Seal.] " Signed, sealed and delivered in the presence of " George N. Donnelly." The entry of judgment is in the following form: " Jan. 31, 1901. " Action of debt on specialty 459. William B. Hazel, with warrant of attorney to enter Assignee of Frank Moncur, judgment against this defendant V. without process and release of error George W. Jacobs. for $70.00, int. from Nov. 1, 1889. " And now, to mt, this 31st day of January, a.d. 1901, the note with warrant of attorney is received and filed and thereupon judg- ment is hereby given in favor of said plaintiff, and against George W. Jacobs, defendant, for seventy dollars, with interest, from November 1, a.d. 1889, and fifty cents costs. " John B. Hutton, J. P." To the declaration upon this judgment the defendant pleaded payment of the judgment.^ He also pleaded that he was never served with any process in the state in which the said judgment was obtained, and that he did not appear to the said suit in person or bj' attorney, and that he was not resident nor present within the juris- diction of the said court in which said judgment was rendered, and that John B. Hutton, justice of the peace, and one J. H. Hughes, attorney-at-law, appeared for the defendant in the said suit and entered judgment against the defendant, but that neither was authorized by the defendant so to do. > A part of the opinion, in which the court held that this defense was not available, is omitted. — Ed. 552 JUDGMENTS Upon the trial of the present action an exemplified copy of the Delaware judgment was put in evidence, also a copy of the statute of Delaware pennittin<]; the entry of such judgment by a justice of the peace ujion warrant of attorney. It was also proved that Hazel was the holder by assignment of the note in question. . . . The defect alleged is that there was an absence of jurisdiction over the tlefendant, Jacobs, in that there was no legal service of process upon him, and no appearances l)v him or by any attorney authorized to so appear. This rai.ses the question whether a judgment entered \nthout process or appearance, but entered in confcjrmity with the authority given by a warrant of attorney executetl by the defendant, confers jurisdiction upon a court to enter a judgment which is unassailable collaterally in both domestic and foreign jurisdictions. It is not denied that the entry of the judgment by the justice of the peace in the State of Delaware was upon its face regular, and in conformity with the statutes of tliat state. It is not denied that the authority given by the warrant of attorney conferred uj^on the justice of the peace of the State of Delaware and elsewhere power to enter judgment upon the note unthout process. It cannot ])e denied that a party can waive his right to have a suit i:)egun against liim by process. Crosby v. Washburn, 37 Vroom 494. N(jr can it be denied that the warrant of attorney authorizing another to appear and enter judgment without process is a waiver of such right. In the words of Chief Justice Ruger, in delivering the opinion in the case of Teel v. Yost, 128 N. Y. 887: " That a {Kjwcr so conferred is the equivalent of process is entirely settled. In all cases where such an authority exists, it is simply a question as to what the princii)al has authorized to be done in his name, and does not involve any of the questions arising in an action in invitum against resident or non-resident defenilants." The courts of this state have recognized the ('(Miclusive character of foreign judgments entered without i)rocess, but upon the authorization of a warrant of attorney to appear for the defendant. Hendrickson r. Vr'u-s, Ki \'room .')')."); Sclielinenliiie /. Lippiiicott , 40 Id. H2. lioth (A the.se cases involved actions upon ju*.s the action or MiifFer judRnuMit hy /(i7 '/i>iV, or otherwiHc, to PIUS.S. . . . Thv nufnovil tirlionnn WfiM nijt an authority niven before the action conunenced, but w.-i.s a confeH.Mion ■igned by the dt-fenilanl after tin; proce.s.s wa« i.sHUed." Sec II lliicyc. of n A- I'r U7:\: 1 Ul.ick. .ludL'iiiciits, 2 S<« 23 Cyc. 860. " During the- tcnne whcn-iii any judiciall act is done, I lie record rciiiaincth in fh(! l»rcHt of the jikIk'-h <»f Hn' court, and in their reiuenil>ranee, and therefore the roll iH alteralile , the court said: " We think it dear, upon the uuthoritioH, that the court may make such amendment.^ upon any competent leKal evidence, and that they are the proper judgeH an t(» the amount and kind of evidence re(juiHite in each ca.se to satisfy them what was the real order of the court, or the actual proceeding liefore it; what was the pro|)er entry to he made on the docket, and how the record should he extended. Where there is nothini^ more to rely on limn mere nieinory, the <"i»urt will act if at all with great caution." — Eu. RADCLYFFE V. BARTON 559 the court is to be construed in connection with the facts of the respective cases to which that language was apphed. The parties proposed to bring upon the record fresh facts — new proceedings, which had not been recorded because they had not occurred until after the appeal. In fine, they proposed to deal with the case, and the court below had ceased to have any jurisdiction over that. The action of the District Court reversing the judgment of the Circuit Court is afl&rmed. The other judges concur. RADCLYFFE v. BARTON. Supreme Judicial Court of Massachusetts. 1891. [Reported 154 Massachuselts, 157.] Writ of error, issued on January 6, 1889, to reverse a judg- ment rendered by the Superior Court at July term, 1879. Plea, in nullo est erratum. The record of the action in which the judgment was rendered, transmitted by the Superior Court, showed that on June 11, 1878, an action of contract upon a promissory note for one thousand dollars, made by the plaintiff in error to the order of the defendant in error, was brought by the latter against the former, the ad damnum of the writ being laid at three hundred dollars; and that at the July term, 1878, judgment was rendered against the plaintiff in error on his default, and in favor of the defendant in error, in the sum of three hundred dollars, together with the costs of suit. At the July term, 1879, the defendant in error filed a motion in that court to vacate the judgment so rendered by default, bring the suit forward, and increase the ad damnum in the writ to fifteen hundred dollars. This motion was allowed on the day it was filed, and at the same time judgment was rendered in the case in favor of the defendant in error for $1,116.73 damages, together with the costs of suit, on which execution was dulj- issued. The assignment of errors recited, among other things, that the judgment was vacated, the action brought forward, and the ad damnum increased, and the new judgment rendered, without notice to the plaintiff in error of the motion filed bj' tne defendant in error. The case was submitted to this court on agreed facts, reciting that the transcript of the records of the Superior Court was cor- rect, and that an action of contract bad been brought upon the 560 PROCEEDINGS AFTER JUDGMENT judgment sought to be reversed within six years prior to suing out this writ of error, and waiving any assignment of error requiring other evidence. Allen, J. The cause was finally disposed of by the entry of judgment for three hundred dollars on the default. There was no fraud nor error nor mistake in the entry of that judgment, as was the ease in Edson v. Edson, 108 Mass. 590. Stickney v. Davis, 17 Pick. 169. Capen v. Stoughton, 16 Gray, 364. The term of court had closed. Several more terms had also passed. After all this, the court on a mere motion assumed to vacate the judgment, to bring forward the action, to allow an amendment increasing the ad (laninufn, and to enter judgment against the plaintiff in error for a larger sum. We need not consider whether it is to be presumed that notice of the motion was given to the plaintiff in error or not. In the assignment of errors he sets forth that no notice was given to him; but by his agreement he waives this. It would be more satisfactory to have had this fact proved, if it existed; but whether notice was given or not, it was not in the power of the court at that time to vacate the judgment on a mere motion. Ma.son v. Pearson, 118 Mass. 61. Blanchard v. Ferdi- nand, 132 Ma.ss. 389. Wood i'. Payea, 138 Alass. 61. Pierce v. Lamper, 141 Mass. 20. Barnes v. Smith, 104 Mass. 363. Mort- land V. Little, 137 Mass. 339. See also Dudley v. Keith, 153 Mass. 104. We need not consider whether it might have l)ecn done on a formal petition, under the Pub. Sts. c. 187, § 17 (Pierce v. Lamper, nbi supra), or on a writ of review. Pub. Sts. c. 187, §§ 22, 25, 30, 35.' Tlic judgment for three huiiilri'd dollars was properly ent(M'ed, and the plaintiff in error has no ground of complaint on that score. Jarvis v. Blanchard, (> Mass. 4. Storer v. White, 7 Mass. 448. Fairfield v. Burt, 11 Pick. 244. That judgment therefore will stand, and the judgment subsecjuently entered must be reversed. Judgment rcrcrscd.^ ' See Ma8.s. R. L., c. I'J.'J, sees. 14-:J7, for the present law of Mius-sachusctts. — Ed. » See Piwi v. Rezek, 200 III. :i44, m N. E. ()7; Priest v. Axon, 1)3 Me. 34, 44 Atl. 124; PcHkc v. Redd, 14 Mo. 79; Mwjre v. Hinnnnt, 90 N. C. 103; May v. Stiniaon Lurnlx-r Co., 119 N. C. 90, 25 S. E. 721. — Eu. CHAMBLEE V. COLE 561 CHAMBLEE et al. v. COLE. Supreme Court of Alabama. 1900. [Reported 128 Alabama, 649.] This was a proceeding by petition in the court below to vacate a decree of said court rendered at a former trial by which a home- stead exemption was set apart to a widow and minor children before administration. The petition was filed by appellee, who alleges she is an heir at law of the decedent. It was alleged and the record in the probate court disclosed that the petition upon which the decree sought to be vacated was based, contained only the following allegation as to the real estate owned by the decedent at the time of his death, to-wit: " He owned, without any incum- brance, a plantation which does not exceed 160 acres, or two thou- sand dollars in value." Upon the hearing of this petition a decree was rendered vacating and annulling the former decree by which the homestead exemption was set apart. From this decree appellants appeal, and assign the rendition thereof as error. Tyson, J. It is well settled that where a decree, void for want of jurisdiction, has been rendered, the court rendering it possesses the inherent power, and should on motion, vacate said decree. It is a nullity and the court may at any subsequent term vacate it. 3 Brick. Dig. 584, § 124. If not void, the court has no power to alter, vary or annul it after the expiration of the term at which it was rendered, except for clerical error or omission on evidence shown by the record. Baker v. Barchff, 76 Ala. 414; Buchanan v. Thomason, 70 Ala. 401. It is equally as well settled that where the court, whose jurisdic- tion is questioned, is one of limited jurisdiction, it must appear from the face of the proceedings that it has acted within the scope of its jurisdiction. In other words, no presumption is indulged, from the mere exercise of jurisdiction, of the existence of jurisdic- tional facts. They will not be inferred, but must affirmatively appear from the record. Pettus v. ]\IcLannahan, 52 Ala. 55; Joiner v. Winston, 68 Ala. 129. To quote the language to be found in Robertson v. Bradford, 70 Ala. 387: " Nothing is presumed to be within the jurisdiction of a court of hmited jurisdiction except that which is so expressly alleged and affirmatively appears from the record." The jurisdiction of the probate court to set apart to a widow and minor children exemptions before administration (Code, § 2097; 562 PROCEEDINGS AFTER JUDGMENT Code of 1886, §2562, and Acts, 1886-87, p. 112), is conferred by statute alone and in the exercise ©f that jurisdiction it is a court of Umited jurisdiction. It is necessary, therefore, that the juris- dictional facts affirmatively appear from the record. The petition filed by the widow in this case, upon which the probate court acted and which is the basis of the decree entered by that court, is subject to the same infirmities as was the one in the case of Brooks r. Johns, Admr., 119 Ala. 412. On the authority of that case, the proceedings here involved, must be held to be void. Being void, the court committed no error in vacating them. Affirmed.^ [Stephen, Pleading, Williston's edition, *12S-*131.1 After final judgment is signed, the unsuccessful party may bring a writ of error; and this, if obtained and allowed, and if notice of the allowance be served before execution, suspends (generally speak- ing) the latter proceeding, till the former is determined. A writ of error is sued out of Chancery, directed to the judges of the court in which judgment was given, and commanding them, in some cases, themselves to examine the record; in others, to send it to another court of appellate jurisdiction, to be examined, in order that some alleged error in the proceedings may be corrected. The first form of writ, — called a writ of error coram nobis [or vobis] — is, where the alleged error consists of matter of fact; the second, — called a writ of error generally — where it consists of matter of law. When a writ of error is obtained, the whole proceedings to final judgment inclusive are then always actually entered (if this has not lx.*fore Ix'en done) on record; and the object of the writ of error is to reverse the judgment, for some error oi fact or law that is sup- posed to exist in the proceedings as so recorded. It will be proper here to explain in what such error may consist. Where an issue in fad has been decided, there is (as formerly observed) no appeal in the English law from its decision, except in the way of motion for new trial; and its being wrongly decided is not error, in that technicjil sen.se to which a writ of error refers. So, if a matter of fact should exist, which was not brought into issue, but which, if brought into issue, would have led to a dilTcrcnt judgment, the existence of such hid does not, after judgment, amount to err^'/" in the piocccdings. I'or examjilc if I he defendant hiis a release, Init lUn-s ihA plead it in bar; its existence cannot, ' Sif In re College .Stmt, 1 1 II. 1. 17J; 2:5 Cyc. OO.'i. — Eu. POWELL V. GOTT 563 after judgment, on the ground of error or otherwise, in any manner be brought forward. But there are certain facts, which affect the validity and regularity of the legal proceeding itself; such as the defendants having, while under age, appeared in the suit by at- torney, and not by guardian; or, the plaintiff's or defendant's having been a married woman when the suit was commenced. Such facts as these, however late discovered and alleged, are errors in fact, and sufficient to reverse the judgment upon writ of error. To such cases the writ of error coram nobis applies: " be- cause the error in fact is not the error of the judges, and reversing it is not reversing their own judgment." ^ POWELL V. GOTT. Supreme Court of Missouri. 1850. [Reported 13 Missouri, 458.) Napton, J. This was a motion to set aside a judgment obtained against an infant who appeared by attorney. The judgment was rendered in 1841, and the motion was made in 1847, about two years after the defendant attained his majority. The motion was supported by several affidavits, both of the petitioners and others of his family to establish the truth of the facts stated therein. The motion was overruled by the circuit court. This is in the nature of a writ of error coram nobis. The object of this motion is to correct an error in fact, upon which certain pro- ceedings in law have been based. The objections taken to the motion here, are first, that the motion came too late, having been made after the infant attained his full age; ^ second, that our statute of limitations upon writs of error and the 8th section of the 7th article of the act concerning Practice at Law, constitute a bar from lapse of time. The section above referred to provides, that " judgments in any court of record shall not be set aside for irregularity, on motion, unless such motion be made within five years after the term such judgment was rendered." 1 See 23 Cyc. 883. Now generally the relief formerly given on writ of error coram nobis is given on a simple motion. See Harris v. Hardeman, 14 How. (U. S.), 334, 346; 1 Black, Judgments, 2d ed., sec. 300; 1 Freeman, Judgments, 4th ed., sec. 94. — Ed. ' The opinion of the court on this objection is omitted. — Ed. 564 PROCEEDINGS AFTER JUDGMENT This section we deem inapplicable to the present motion, for the reason, that the entering of a judgment against an infant is not an irregularity, but an error. Ex parte Toney, 11 ^lo. R. 663. Nor do we think the limitation of five j^ears, fixed by our statute which regulates writs of error to the supreme court, applicable, because the error complained of here is not one of law, but of fact. The whole of our act regulating the practice in the supreme court, and writs of error generally, most manifestly is intended to apply to writs brought to correct errors of law. There is no limitation to be found in our statute book to a writ of error coram nobis — or a proceeding to correct a judgment of law founded upon an error of fact. The rare occurrence of such proceedings has doubtless caused them to be overlooked by the legislature. The courts have no power to supply the omission. . . . Judgment reversed and cause remanded.^ [Blackstone, Commentaries, Book III, * 405.] An audita querela is where a defendant, against whom judgment is recovered, and who is therefore in danger of execution, or perhaps actually in execution, may be relieved upon good matter of dis- charge, which has happened since the judgment: as if the plaintiff hath given him a general release; or if the defendant hath paid the debt to the plaintiff without procuring satisfaction to be entered on the record. In these and the hke cases, wherein the defenilant hath good matter to plead, but hath had no opportunity of plead- ing it Neither at the beginning of the suit, or ])ius darrein con- tinuance, wliich, as was shown in a former chapter nmst always be before judgment), an audita querela lies, in the nature of a bill in equity to be relieved against the oppression of the plaintiff. It is a writ directed to the court, stating that the complaint of the defendant hath been heard, audita querela defendentis, and then, setting out the matter of the complaint, it at Icngtii enjoins the court to call the parties before them, and having heard their allega- tions and proofs, to cause justice to be done between them. It also lies for bail, when jiidgnient is ol)lained against tiiem by scire facias to answer tiie debl of tiieir {jrineipal, and it happens afterward.s that the original judgment against thcii- principal is r(!versed: for here the bail, after judgment had against them, have no opp- fees and the events of the trial having been such as to strengthen and confirm this bias." The order vacating the judg- ments of conviction and granting a new trial has not yet been entered, the District Judge having filed a memorandum stating in suh)stance that the question of jurisdiction was an important one and that the order would be withheld until the I'niteil States attorney had an opportunity to raise the question in a higher court. Thereafter, and on .\pril (ith, 1914, the United States attorney procured an order in the Circuit Court of Appeals directing Dis- trict Judge Mayer to show cause why a writ of proiiibition should not l>e issued from that court forbiihhng the entry of an order vacat- ing the judgments of conviction and granting a new tiial upon the ground that the District Court was without juris(hcti()n to enter it. Certain of the facts upon which the motion for a new trial was granted do not appear in the record of tiie previous trial. The (juestions certifietl are: ' . . . " Question 2 " When a writ of error has l)een issued to review a judgment of cfinvictififi in a criminal cause entered in a District Coint, has tlie District Court, u|)Oii a niolion made after lh<' term at whidi ' A part of the niw, dmlinu with the (|iu'.sti()ii of tlu' jurisdirf ion of the Circuit Court of ApfM'alH to isHue ii writ of proliil>ition, in omitted. — Ed. UNITED STATES V. JXTLHIS M. MAYER 567 judgment was entered, jurisdiction to set aside the judgment and order a new trial on facts discovered after the expiration of said term and not appearing in the record of the previous trial ? " Question 3 " Whether, when a District Court has itself raised the question of its jurisdiction to entertain a motion made after the expiration of the term to vacate a judgment of conviction and the United States attorney thereupon tendered its consent to the hearing of the motion on the merits if the jurisdictional question raised by the court were dependent on that consent, the United States is debarred by such tender from raising the question of jurisdiction of the District Court to vacate said judgment ? " Hughes, J. ^ ... 1. In the absence of statute providing other- wise, the general principle obtains that a court cannot set aside or alter its final judgment after the expiration of the term at which it was entered, unless the proceeding for that purpose was begun during that term. Hudson v. Guestier, 7 Cranch 1; Cameron v. M'Roberts, 3 Wheat. 591; Ex parte Sibbald, 12 Pet. 488, 492; Bank of United States v. Moss, 6 How. 31, 38; Bronson v. Schulten, 104 U. S. 410, 415-417; Phillips v. Negley, 117 U. S. 665, 673, 674; Hickman v. Fort Scott, 141 U. S. 415; Hume v. Bowie, 148 U. S. 245, 255; Tubman v. B. & O. R. R. Co., 190 U. S. 38; Wetmore v. Karrick, 205 U. S. 141, 149-152; In re MetropoUtan Trust Co., 218 U. S. 312, 320, 321. There are certain exceptions. In the case of courts of common law — and we are not here concerned with the special grounds upon which courts of equity afford relief — the court at a subsequent term has power to correct inac- curacies in mere matters of form, or clerical errors, and, in civil cases, to rectify such mistakes of fact as were re\'iewable on writs of error coram nobis, or coratn vobis, for which the proceeding by motion is the modern substitute. Pickett's Heirs v. Legerwood, 7 Pet. 144, 148; Alatheson's Adm'r. v. Grant's Adm'r., 2 How. 263, 281; Bank of United States v. AIoss, supra; Bronson v. Schulten, supra; Phillips v. Negley, supra; In re Wight, 134 U. S. 136; Wetmore v. Karrick, supra. These writs were available to bring before the court that pronounced the judgment errors in matters of fact which had not been put in issue or passed upon and ' A part of the opinion, holding that the Supreme Court has authority to answer the questions certified, and that the Circuit Court of Appeals had juris- diction to issue the writ of prohibition, is omitted. — Ed. 56S PROCEEDINGS AFTER JUDGMENT were material to the validity and regularity of the legal proceed- ing itself; as where the defendant, being under age, appeared by attorney, or the plaintiff or tlefentlant was a married woman at the time of commencing the suit, or died before verdict or interlocu- tory judgment, — for, it was said, ' error in fact is not the error of the jutlges and reversing it is not revei-sing their own judgment.' So, if there were error in the process, or through the default of the clerks, the same proceeding might be had to procure a reversal. But if the error wore ' in the judgment itself, and not in the process,' a writ of error did not lie in the same court upon the judgment, but only in another and .superior 'court. Tidd, 9th ed., 113G, 1137; Stephen on Pleading, 119; 1 Roll. Abr., 746, 747, 749. In crimi- nal cases, however, error would lie in the Iving's Bench whether the error was in fact or law. Tidd, 1137; 3 Bac. Abr. (Bouv. ed.) " Error," 36G; Chitty, Crim. L., 156, 749. See United States v. Plumer, 3 CUff. 28, 59, 60. The errors of law which were thus subject to examination were only those disclosed l)y the record, and as the record was so drawn up that it did not show errors in the reception or rejection of evidence, or misdirections by the judge, the remedy applied ' only to that very small number of legal questions ' which concerned ' the regularitj' of the pro- ceedings themselves.' See Report, Royal Commission on Crimi- nal Code, (1879) p. 37; 1 Stephen, Hist. Crim. L., 309, 310. In view of the statutoiy and limited jurisdiction of the federal district courts, and of the specific provisions for the review of their judgments on writ of error, there would appear to be no basis for the conclusion that, after the term, these courts in common law actions, whether civil or criminal, can set aside or modify their final judgments for errors of law; and even if it be assumed that in the ca.se of errors in certain matters of fact, the district courts may exercise in criminal cases — as an incident to their powers expressly granted — a correctional jurisdiction at sui)sequent terms analogous to that exercised at common law on writs of error coram nobis (See Bishop, New Crim. Pro., 2d ed., § 1369), as to which we express no o{)inion, that authority would not reach the present ca.se. This jurisdiction was of limited scope; the power of the court thus to vacate its judgments for errors of fact existed, as already st.ated, in those ca.ses when^ the errors wen^ of the most fundamental character, that is, such as rendered tiie ])roeee(ling it.sssful and the judgment or any part thereof shall have been collected or otiierwise enforced such restitution may thereupon be compelled as the court shall direct; but the title to property, sold under such judgment to a purcha.ser in good faith, shall not thereby be alTected.' ' Soe 1 Black, Ju(JKi"ent.s, 2d ed., sec. 334; 1 Frcenum, JiidnnK'nts, -Itb ed., chap. VII; 23 Cyc. 907. — Eu. STEVENS V. HELM 571 STEVENS V. HELM. Supreme Court of Indiana. 1860. (Reported 15 Indiana, 183.] Appeal from the Rush Common Pleas. Davison, J. This was an action, instituted in the Rush Com- mon Pleas, by the appellee, who was the plaintiff, against Andrew Stevens, upon a promissory note, for the payment of $300. Process against the defendant was duly issued to the sheriff, returnable to the second day of the April term, 1859, of said Court; upon which there is indorsed, the following return: " Served by leaving a copy at his usual place of residence, this April 13, 1859." (Signed) " H. Laughlin, S. R. C, per S. B. Laughhn." On the day on which the process was returnable, the defendant was called and defaulted, and judgment by default was entered against him. Afterward, on the same day, the defendant appeared, and moved to set aside the default, and in support of his motion, filed an affidavit, alleging, " that he was summoned to answer the complaint on that day; that he had left his home in an extreme part of Rush county, early that morning, expecting to be in time for Court; that he came with all reasonable dispatch, and arrived at Court shortly after 9 o'clock a. m., and found that a judgment by default had been rendered against Mm. That he is desirous of making a defense against the action; that he has come to Court for that purpose, and will be ready to file his answer by the next calling of the cause, provided the Court will set aside the default. The motion was refused, and the defendant excepted. There is nothing in this exception. The affidavit fails to show any valid defense to the note, and for that reason, alone, it is an insufficient support to the motion. Where the default has been regularly taken, the Court is not authorized to set it aside, unless the defendant shows, affirmatively, that he has a meritorious defense to the action. 1 Tidd's Prac, 3 Am. Ed., p. 567. But it is said that " the Court erred in rendering judgment by default without proof of the service of process on the defendant." The return is signed, " H. Laughlin, S. R. C, per S. B. Laughlin," and the point relied on is, that " S. B. Laughlin " does not appear to have had authority, as deputy sheriff, or otherwise, to serve the process. In the absence of contrary proof, we will presume that the Court, when it ordered the default, was fully satisfied, by evidence, that the process was regularly served. Moreover, the 5<2 PROCEEDINGS AFTER JUDGMENT question as to the semce of process does not appear to have been raised in the Common Pleas, and is not, therefore, properly before this Court. Per Curiam. The judgment is affirmed, with 5 per cent dam- ages, and costs. ADAMS V. HICKMAN. Supreme Court of Missouri. 1869. [Reported 43 Missouri, 168.] Currier, J.^ The question involved here is one of practice. An interlocutory jutlgment by default was rendered against the de- fendant, who, the succeeding day, moved the court to set it aside, and for leave to file an answer. The motion was accompanied with an affidavit and various exhibits. It was overruled by the court, and final judgment entered for the plaintiff. This jutlg- ment was reversed by the District Court, and the plaintiff brings the case here by writ of error. From the affidavit imd papere in the case, among which is the defendant's answer, it appeal's that the suit was by attachment to the Cooper County Circuit Court, February term, 18G7, the defendant being a non-resident, and notice being given b}- publication. No actual notice of the pend- ency of the suit appears to have reached him till July, 1867. The defendant was absent in Europe from about the last of the preced- ing December till that time. Before leaving for Europe, in Decem- ber, in anticipation (^f a suit, the defendant engaged counsel to represent him, who appeared at the Fei)ruarv term of the court and obtained an extension of the time for pleading to witiiin ninety days of the succeeding August term of the court, it being then believed that the defendant would be back from Europe by the 1st of May, 1SG7. He did not reach New York, however, till July, where he met a letter from his attorney advising him of the suit. He tlien'Ui)on ha.stened to Boonville, and had his answer prepared, which wa.s lodged with the clerk of the court on the 9tli of July. He tlien proceeded to Texas, and obtained testimony to be used on the trial of the cau.se, an revival; for if he do not, (jr if the defendant hai)pen to tlie, he can- SMITH, ACTION AT LAW 581 not afterwards take out execution, but will be forced to bring a new Scire Facias. A Scire Facias upon a judgment is necessary, not only when the plaintiff has delayed to take out execution ^vithin a year and a day, but also when any new person is to be benefited or charged by the execution of the judgment; for it is a rule that executions, and all other judicial writs, must pursue and correspond with the judg- ments on which they are founded; therefore, if a judgment be obtained against A., and he die, a writ of execution cannot issue against his executor, for he was no party to the judgment; so, if the plaintiff obtain judgment, and marry, execution cannot issue in favour of her husband, for he is not mentioned in the record. In these and similar cases, a writ of Scire Facias is sued out, which recites the facts as they have happened; the judgment given upon that writ includes the new party intended to be benefited or charged, and execution may be afterwards sued out upon that judgment. [Blackstone, Commentaries, Book III, * pp. 412-413.] If the plaintiff recovers in an action real or mixed, wherein the seisin or possession of land is awarded to him, the writ of execu- tion shall be an habere facias seisinam, or writ of seisin, of a free- hold; or an habere facias possessionem, or wTit of possession, of a chattel interest. These are writs directed to the sheriff of the county, commanding him to give actual possession to the plaintiff of the land so recovered: in the execution of which the sheriff may take with him the posse comitatus, or power of the county; and may justify breaking open doors, if the possession be not quietly delivered. But, if it be peaceably yielded up, the delivery of a twig, a turf, or the ring of the door, in the name of seisin, is suffi- cient execution of the writ. . . . Upon a replevin, the writ of execution is the writ de retorno habendo. [Form of Writ of Fieri Facias.) * Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, defender of the faith, to the sheriff of greeting: We command you that you cause to be made of the goods and chattels in your bailiwick of C. D. the sum of £ , which in our court before us at Westminster were awarded to A. B. for his damages which he had sustained, as well on occasion of not 1 See Smith, Action at Law, 2d ed., p. 222. — Ed. 582 THE ENFORCEMENT OF JUDGMENTS performing certain promises and undertakings as for his costs and charges by him about his suit in that behalf expended: whereof the said C. D. is con\'icted, as appears to us of record; and have you that money before us at Westminster, immediately after the execution hereof [or " on ,"] to render to the said A. B. for his said damages; and have you there then this writ. Witness (name of chief justice) at Westminster, the day of , in the year of our reign. HARGIS V. MORSE. Supreme Court of Kansas. 1871. [Reported 7 Kansas, 415.] Brewer, J.^ Defendant in error brought ejectment against plaintiff in error. Upon trial he proved title by patent and deed. Defendant in error attempted to show a transfer of title to herself by judgment, sale, and sheriff's deed. The evidence she offered was rejected, and this ruling is brought here for review. She offered the journal entry of judgment in the case of " William H. Strode v. Enoch L. Morse," in the Doniphan county district court, the order and the confirmation of sale, the appraisement, and the sheriff's deed. Each was rejected on the ground that no legal ser- vice was shown to have been made in that action upon the defend- ant Morse. It is not claimed that there was any proof of service. The only testimony which could in any degree have any bearing in that direction was the testimony of the clerk of the district court, that, by fire in 1867 the files of all cases dispo.'^ed of, among them the case of " Strode v. Morse," were burned; and the first sentence in the journal entry of judgment, wiiicli contains these words: " the defendant still failing to answer or dcnnir, although duly served by publication in the Troy Weekly Investigator, a weekly newspaper published in Doniphan county, and State of Kansas." The testi- mony of the clerk tended neither to j)rove nor disprove the fact of .'service; at most it simply laid the foundation for secondary evi- dence. The journal entry disclosed the manner in which service had Ixf'n attempted to l)e made. A ju' intendment must be indulged in favor of the validity of the proceedings not inconsistent with the record. But it is urged that the record shows that the judgment was not entered when the execution was issued. Nor was it necessary that it should have been. The enforcement of a judgment does not depend ui)on its entry or docketing, "^riiese are merely ministerial acts, th(! first of which is re(|uired to be done for |)utling in motion the right of appeal from the judgment itself, and of limiting the time within which the right may be exer(iseut lu it her is necessary BANK OF GENESEE V. SPENCER 585 for the issuance of an execution upon a judp^ent which has been duly rendered. Without docketing or entry execution may be issued on the judgment and land levied upon and sold (Hastings v. Cunningham, 39 Cal. 144) ; and the deed executed by the Sheriff, in fulfillment of the sale, not only proves the sale, but also estops the defendant from controverting the title acquired by it. Dodge V. Walley, 22 Cal. 224; McDonald v. Badger, 23 id. 399; Lessee of Cooper V. Galbraith, 3 Wash. C. C. 550; Blood v. Light, 38 Cal. 649. The finding covers the issues. Judgment affirmed.^ McKiNSTRY and Ross, JJ., concurred in the judgment. BANK OF GENESEE v. SPENCER. Court of Appeals of New York. 1858. [Reported 18 New York, 150.] Appeal from the Supreme Court. In 1846 the plaintiff re- covered judgment in that court against Spencer, Thomas and Burnet, who resided in different counties, and execution was imme- diately issued to the sheriffs of each of the counties, and was by them respectively returned unsatisfied. Burnet having died, the plaintiff, in 1854, issued an execution to the sheriff of Erie county, where Spencer then resided, against him and Thomas, the surviv- ing defendants, without any application to the court for leave to do so. This execution having been returned unsatisfied, the plaintiff instituted proceedings supplementary thereto before the county judge of Erie, before whom Spencer was compelled to appear, and an order of reference to take his examination was made on the 24th February, 1855. He appealed from that order to the Supreme Court, by which it was affirmed, and he then appealed to this court. Pending the last appeal, and in October, 1855, he moved the Supreme Court, at special term, to set aside the execution for irregularity. The motion was denied, and the order denying it having been affirmed at general term in the eighth district, Spencer appealed to this court. Denio, J.2 I am of opinion that the execution which the Su- preme Court was applied to to set aside was not void but only 1 See Doughty v. Meek, 105 la. 16, 74 N. W. 744. As to the protection given to purchasers without notice of the judgment see Ninde v. Clark, 62 Mich. 124, 28 N. W. 765, 4 Am. St. Rep. 823. — Ed. 2 A concurring opinion of Piatt, J., is omitted. — Ed. 586 THE ENFORCEMENT OF JUDGMENTS voidable. There was a judgment which warranted such process, and it had not been paid or released. The practice of the court, now regulated in that particular by statute, forJjade the issuing of execution, after the lapse of five years, without an application to the court, or notice and proof that the judgment or a part of it remained unsatisfied. (Code, §§ 283, 284.) Generally, where an act is done contrary to the provisions of a statute, it is wholly void, unless it fall \nthin the class of merely directory provisions, the omission to conform to which does not wholly vitiate tiie proceed- ing. This is not a case of that kind. But when the whole practice of the court came to be regulated by statute, it was foreseen by the legislature that great inconvenience would ensue from the principle referred to, as it would preclude the courts from relieving parties from slips in practice, arising from inad vert ant omissions and mis- takes. This power was very useful, and indeed indispensable, for \^ithout it there would be danger, in any stage of the case, that the rights of parties might be sacrificed to the requirements of fonn. It was necessar}', therefore, to qualify the rule of the conmion law as to the effect of statutes, and section 174 of the Code was inserted for that purpose. The general intention of this section is to render the statutory rules of practice equall}' flexible with those which the courts had established to regulate their proceedings. It declares, among other things, that the court may, in its discretion and ui)on such terms as may be just, " supply an omission in any proceed- ing," and that " whenever any proceeding taken by a party fails to conform in any respect to the provisions of this Code, the cuurt may, in like manner and on like terms, pennit an amendment of such proceeding, so as to make it conformable thereto." There was always a time aft(T which a party who had recovered a judgment was not at liberty to sue out execution without an application to the court. Formerly, the time was a year and a day ; and the form of obtaining an award of execution, when one had n(jt been i.ssued in time, wius by acirc facias quare execulioncm non. Afterwards it was extended by the Revised Statutes to two years. (2 R. S., 303, § 1.) By the C'ode it was further extended, as we have seen, to five years, and the mode of obtaining leave wjus an ai)plication to the court on luotioii. I'ndcr I lie foiincr practice, it wa,s well settled that the execution, if issued loo late, wius not void. W(X>' before the execution was de- livered to the sheriff, and that the fact and date of such docketing were then correctly stated therein. The line of reasoning by which it is sought to establish the ])roi)o- HJtion that this execution was vi)'u\ is sul)stantially as follows: 'J'liat at common law all i)rocess of courts is limited to the territory over which their jurisdiction extends; that the tenitoii.il jurisdic- tion of the district court in and for a particular county is limited to the county in which it is held; that, therefore, the district court has GOWAN V. FOUNTAIN 589 no authority to issue an execution to another county, except that conferred by statute, which is limited to counties where the judg- ment is docketed (1878 G. S. ch. 66, §299); that consequently such docketing is a condition precedent to the authority to issue an execution, which jurisdictional fact must appear on the face of the execution when issued (Id. § 295) ; that this execution, having been issued before the judgment was docketed in Chippewa county, was absolutely void. This is substantially the line of reasoning advanced by Justice Ryan, speaking for the court, in Kentzler v. Chicago, M. & St. P. Ry. Co., 47 Wis. 641 (3 N. W. Rep. 369). We do not find it necessary to determine in this case whether it is sound or not. We may remark, however, that it seems to us more severely logical than practical, and we are by no means clear that under our judicial system it is correct to say that the territorial jurisdiction of the district court is limited to the county in which it sits, especially in view of the provisions of 1878 G. S. ch. 64, § 3. But, conceding the soundness of the doctrine, its applicability to the present case depends upon the assumption that this execution was issued at the date on which it was made out by the clerk of the court of Swift county, and by him delivered to plaintiff's attorney. If this premise is false, of course the conclusion falls with it. The delivery to the attorney was not unqualified, but only provisional and conditional; the condition being that the judgment should be docketed in Chippewa county, and the date thereof inserted in the execution before it was delivered to the sheriff for service. It was issued, in the sense of being taken from the clerk's office, before the judgment was docketed in Chippewa county, but the judgment was docketed in that county before the execution was issued in the sense of being delivered to the sheriff for service; and this is, in legal contemplation, the date of the issue of an execution. This was, in substance, what was held in Mollison v. Eaton, 16 Minn. 426 (Gil. 383). It is true that in that case the levy was on per- sonal property, but, as respects the authority to issue an execution to another county, we cannot see how that makes anj^ difference. The practice adopted in the present case has obtained in this state from a very early date. It is an eminently convenient one, and injures nolx)d3^ Our conclusion, therefore, is that the execution and the sale under it were valid. The land in question was, at the time of his death, the home- stead of defendant Bensel's deceased husband, and as such she had a life estate in the property. She occupied it as her homestead for some time after her husband's death; but several years before the 590 THE ENFORCEMENT OF JUDGMENTS lex'A' under plaintiff's execution she had ceased to occupy it, and had removed to another phice. which she has ever since occupied as her home. This constituted an abandonment of the premises as a homestead unless she had filed the notice required by statute. Of this there was no proof, and the burden of proving it, if the fact existed, Wiis on her. Havinji been the homestead of hor husband, her life estate in the huid was not subject to his debts; but to exempt it from her own debts she must have occupied it as her homestead, precisely as any one else has to do. Judgment reversed, and cause remanded, \vith directions to enter judpjnent for the plaintifT for the possession of the premises, and for dama^ies for witiiholdinsi the same since the commencement of the action in accordance with the findings of fact.^ HUNT V. LOUCKS. Supreme Court of California. 1869. [Reported 38 California, 372.] S.^nderson, .J. delivered the opinion of the Court. ^ The plaintiff claimed title founded upon a sale under an execu- tion, to which neither he nor the defendant's lessor was a party. In support of his claim he produced at the trial a judj^ment, execu- tion and Sheriff's deed. To this testimony the defendant de- murred, upon three grounds: First — That the execution was void, because it varied materially from the judgment; Second — That it was void, becau.se it appeared ui)on its face to have been i. think it was only voidable, and therefore the sale valid. > See McDfjnald v. Fuller, 11 .'^. D. ■.V^r^, 77 N. W. .581. A« to the validity of proct-HH isMucd .siiNseciucntly to llio entry of jiidumpnt but prior to th*! time authorized l»y statute or rule of court, see Pciuiiinan v. Cole, S Met. f.Ma.HH,), 41M'); Maeon v. ('ro|)Hey, 7 N. V. liK'i. — lOi). ' A part of the opiaiun xa uiuitteU. — Eu. HUNT V. LOUCKS 591 It cannot be denied that to sustain a title founded upon a Sheriff's sale, a judgment must be produced; an execution, which the Judge can affirm, was issued upon the judgment produced, and a deed which was given in pursuance of the execution and the sale under it. Unless it appear that the judgment, execution and deed are links of the same chain, the title will fail. But a question of vari- ance between them must not be confounded with the question of their validity. The two propositions are quite separate and dis- tinct. The former is a question of identity only — the latter assumes or concedes the identity, and goes only to the validity of the suspected instrument. If the execution differs so materially from the judgment that the Judge cannot affirm that the former was issued upon the latter, his conclusion is, not that the execution is void, but that it was not issued upon the judgment which has been exhibited with it. The conditions upon which the two ques- tions arise, are not only different, but the question of void, or voidable, does not arise until the question of variance has been considered. That this execution was issued upon the judgment which was exhibited with it does not achnit of a rational doubt. The recitals in the execution correspond with the judgment in every particular, except as to the amount; the Court, the date, the parties, the general character of the judgment, are all correctly stated in the execution; and it is not pretended that there is, or was, any other judgment of the same Court, of the same date, between the same parties and of the same general character upon which the execution could have been issued. Such being the case, there is no rational ground for saying that the judgment and execution are not parts of the same judicial proceedings; and we do not understand counsel as disputing this proposition, but as conceding it, and insisting only that the execution is void, because it calls for too much money. That, as a general rule, an execution must follow the judgment, and conform to it, and that if it varies materially from it, it will be set aside, or quashed, or amended, as the case may be, upon the motion of the parties to it, who are prejudiced by the error, is undoubtedly true, as appears by the cases cited by counsel. But, that and nothing more being shown, we have made but little prog- ress in the present case. The question is not as to what the Court would have done with this execution if the defendants in the judgment had moved to set it aside — to quash, or amend it, as they might have done. If such was the question, it could l)e readily answered. The Court would not have set it aside, but 592 THE ENFORCEMENT OF JUDGMENTS would have allowed it to be amended so as to conform to the judg- ment; that is to say, it would have quashed it only as to the excess. Stevenson v. Castle, 1 Chit. 349; King v. Harrison, 15 East, 615; Morrys v. Leake, 8 T. R. 416, note a; McCollum v. Hubbert, 13 Ala. 282. But quite a different question is here presented — one which rests uixjn entirely different conditions, and involves altogether different principles: It is as to what ought to be done \nth such an execution when it comes before the Court collaterally as evidence of title in an action which is not even between the parties to the execution, but between entire strangers to it, and where it is not pretended that the execution was ever, at any time, even after the sale, set aside upon the application of the parties, who alone were injured by the error. We understand the settled rule to be that if the execution be merely erroneous — that is to say, voidable — a sale under it to a bona fide purchaser will be valid, although the execution be after- wards set aside ; but if the execution be irregular — that is to say, void — a sale under it, even to a bona fide purchaser, \\\\\ also be void. Woodcock v. Bennet, 1 Cow. 711. .. . That executions which are merely voidable cannot be attacked collaterally admits of no debate, where, as in this State, the com- mon law controls the question. A collateral attack can no more be made upon an erroneous execution than upon an erroneous judg- ment. Like an erroneous judgment, an erroneous execution is valid until set aside upon a direct proceeding brought for that purpose; and, until set aside, all acts which have been done under it are al.so valid. In a collateral action, it cannot be brought in question, even by a party to it, much less, as in this case, by a stranger to it. Even directly it cannot be attacked by a stranger, for it does not lie in the mouth of A to say by it B has been made to pay too much money, and that therefore all proceedings under it are null and void. That is a (jiiestion which concerns H only, and if he is content A cannot comi)lain. Nor if B, who is bound to know of the variance between the judgment and tlie execution, does not interpose by motion for its correction, ought he to l)e allowed to question the title of a purcha.ser under it - it may Ihj years afterward ? He has a remedy by motion to aincml, or by action to recover the cxce.s.s of the levy from the plaint iff in tiie execution, and the Clerk, also; besides, with full knowledge of all defects, he has allowed the Sheriff, acting as his agent in I he matter, to sell, and the purcha.MT to buy, without oix-ning his lips, and in all fMirtM-i- and justice t(j the latter, he must keep them closed forever. MCCLURE V. LOGAN 593 Blood V. Light, present term; Jackson v. Bartlett, 8 John. 361; Jackson v. Robbins, 16 Id. 537; Mariner v. Coon, 16 Wis. 465; Elliott V. Knott, 14 Md. 121. Second — The ground upon which the second objection to the execution rests is, that it included the costs of an appeal from the judgment to this Court. It was proper and regular that it should. Third — The last objection rests upon the ground that the return endorsed upon the execution does not contain a report in detail of the acts of the officer in making the levy. It was not necessary that it should. If the return be defective for the reason suggested, or for any other reason, the purchaser would not be affected by the defect. Whether the return be good or bad, sufficient or insuffi- cient, is a matter of no moment to the purchaser, for his title depends upon it in no respect whatever. Judgment reversed and a new trial granted. Sprague, J., expressed no opinion.^ McCLURE V. LOGAN. Supreme Court of Missouri. 1875. [Reported 59 Missouri, 234.] Sherwood, J. In a proceeding to cancel certain deeds, the court below held that a purchaser, at a judicial sale, took no title to land purchased, although he purchased in good faith and without notice; that the judgment was satisfied prior to the sale, under the execu- tion issued thereon. The point was considered in Reed v. Heirs of Austin, 9 Mo., 722; but there was a division of opinion in regard to it; the majority of the court holding that the purchaser obtained a title notwithstand- ing the previous satisfaction of the judgment. The subject was not, however, extensively nor elaborately cUscussed, nor were the authorities cited in support of that view. Jackson v. Caldwell, 1 Cow., 622; Jackson v. Anderson, 4 Wend., 474, directly in point. In the subsequent case of Durette v. Briggs, 47 Mo., 356, the matter underwent a more thorough discussion, when a conclusion in conformity to that arrived at by the trial court in the case at bar was reached. So, also, Durfee v. Moran, decided at our last August term, although containing other elements on which the decision of that case might have rested, yet on the point in hand arrives at the result just indicated. 1 See Alderson, Judicial Writs and Process, sees. 49-55. — Ed. 594 THE ENFORCEMENT OF JUDGMENTS And though there is a conflict of authority in regard to the valid- ity of a purchase made umler the circumstances heretofore men- tioned, it is confidently believed that the current of judicial opinion will be found in accord ^^^th that adopted by our o\vti court, in its more recent decisions. Ror. Jud. Sales. § 722; Jackson v. Morse, 18 Johns., 441; Wood v. Colvin, 2 Hill, 566; Carpenter v. Stilhvell, 11 X. Y., 61, Craft v. Merrill, 14 Id., 456; Hammatt v. W>Tnan, 9 Mass., 138; King v. Goodwin, 16 Id., 64; Swan v. Saddlemire, 8 Wend., 676, and cases citeil. The principle on which these decisions rest, is that the existence of the debt, whose collection is the sole object of the issuance of the fi. fa., is the basis on which the power to sell alone depends; that when the debt is extinguished, the authority under and virtue of the execution dies \\ith it, and that he who buys under a power buys at his peril, and takes nothing by his purchase if the alleged power does not exist. And no good reason is perceived, why the same principle is not applicable in a case like the present, as would be applied to one where the authority is conferred by the act of the parties rather than that of the law. If the principal is dead, although the purchaser is unaware of the fact, and acts in the most perfect good faith, yet his purchase from the agent is a nullity and no title ensues therefrom. Such hazards are the inevitable incidents which attend the doings of all acting under delegated powers, whether conferred by some private person or by the law. There were none of the ingredients of an equitable estoppel in this ca.'^e. The plaintiff, who resitles in Louisville, Ky., had set- tled up the judgment and all costs in full, in October, 1869, and the Bale did not take place until the following April; and having the judgment satisfied under the agreement devolved entirely on the plaintiff in the judgment, and on its agents. There is no ground then to impute laches in this regard to McClure, or to hold him estopped by a state of facts of which he was wholly ignorant. The judgment is affirmed, all the judges concur.' Statitk 1;> Mdwaui) 1, ( 'hai'tku 17. (1285.) II Slahilen at Large, 104.] When Debt is recoveriMl or knowlcd^cd in the Kirii^'s Court, or Damages awarded, it sliail be from licnccfortli in the election of ' LiidflinKton v. Peck, 2 f'onn. 7(K); W illianiH v. Cill \- Co., J. J. Marsh. (Ky.), IH?, ninlrn. See 1 I'reciimti, K.\cc:ulion8, ;id cd., aec. 19; 8 Encyc. of I'l. A I'r. .'i'^'}. — Ed. STATUTE OF FRAUDS 595 him that siicth for such Debt or Damages, to have a Writ of Fieri Facias unto the Sheriff for to levy the Debt of the Lands and Goods, — or that the Sheriff shall deliver to him all the Chattels of the Debtor (saving only his Oxen and Beasts of his Plough) and the one half of his Land, until the Debt be levied upon a reasonable Price or Extent. And if he be put out of the Tenement, he shall recover by a Writ of Novel disseisin, and after by a Writ of Re- disseisin, if need be. Statute 29 Charles II, Chapter 3. (1676.) [8 Statutes at Large, 408.] XIII. And' whereas it hath been found mischievous, that judgments in the King's Courts at Westminister do many times relate to the first day of the term whereof they are entred, or to the daj^ of the return of the original, or filing the bail, and bind the defendants lands from that time, although in truth they were acknowledged or suffered and signed in the vacation-time after the said term, whereby many times purchasers find themselves agrieved: XIV. Be it enacted by the authority aforesaid, That from and after the said four and twentieth day of June [1677] any judge or officer of any of his Majesty's courts at Westminster, that shall sign any judgments, shall at the signing of the same, without fee for doing the same, set down the day of the month and year of his so doing, upon the paper boolv, docket or record which he shall sign; which day of the month and year shall be also entred upon the margent of the roll of the record where the said judgment shall be entred. XV. And be it enacted. That such judgments as against pur- chasers bona fide for valuable consideration of lands, tenements or hereditaments to be charged thereby, shall in consideration of law be judgments only from such time as they shall be so signed, and shall not relate to the first day of the term whereof they are entred, or the day of the return of the original or filing the bail ; any law, usage or course of any court to the contrary' notwithstanding. XVI. And be it further enacted by the authority aforesaid. That from and after the said four and twentieth day of June no writ of Fieri facias or other writ of execution shall bind the prop- erty of the goods against whom such writ of execution is sued forth, but from the time that such writ shall be delivered to the sheriff, under-sheriff or coroners to be executed : and for the bet- 596 THE ENFORCEMENT OF JUDGMENTS ter manifestation of the said time, the sheriff, under-sheriff and Coroners, their deputies and ap;ents, shall upon the receipt of any such \\Tit (without fee for doing the same) endorse upon the back thereof the day of the month or [and] year wliereon he or they received the same. Statute 5 George II, Chapter 7. (1732.) [16 Statutes at Large, 272.] Whereas his Majesty's subjects trading to the British planta- tions in .\merica lie under great difficulties, for want of more easy methods of proving, recovering and levying of debts due to them, than are now used in some of the said plantations: and whereas it will tend very much to the retrieving of the credit fonnerly given by the trading subjects of Great Britain to the natives and iuhal)i- tants of the said plantations, and to the advancing of the trade of this kingdom thither, if such inconveniences were remedied, . . . I\'. And be it further enacted by the authority aforesaid, That from and after the said twenty ninth day of September, one thou- sand seven hundred and thirty two, the houses, lands, negroes, and other hereditaments and real estates, situate or being within any of the said plantations belonging to any person indebted, shall be liable to and chargeable with all just debts, duties and demands of what nature or kind soever, owing by any such person to his Majesty, or any of his subjects, and shall and may be assets for the satisfaction thereof, in like manner as real estates are by the law of England liable to the satisfaction of debts due by l:)ond or other specialty, and shall be subject to the like remedies, proceedings and process in any court of law or e(iuity, in any of the saitl plantations respectively, for seizing, extending, selling or ilisposing of any such houses, lands, negroes, and other hereditaments and real estates, towards the satisfaction of such del)ts, duties and demands, and in like manner as personal estates in any of the said |)lantations respectively are seized, extended, sold or disposed ot, for the satis- faction of debts. porter's lessee v. COCKE 597 PORTER'S LESSEE v. COCKE. Supreme Court of Errors and Appeals of Tennessee. 1823. [Reported Peck, 30.] Brown, J. The questions presented for determination by this case are, first, is a judgment a lien on the lands of the debtor; second, if a judgment be a lien on the lands of the debtor, in what manner may this lien be suspended or discharged; and, thirdh', if Porter's judgment was not a lien, or that lien were b}^ any means destroyed before the sale under his judgment, and if the sale to Thomas Cocke was fraudulent, whether he is not protected by the statute of limitations ? By the common law, lands and tenements were not subject to be taken in execution at the suit of a common person, except in case of an heir; to remedy this obvious defect, came the 13th Ed. 1, ch. 18, bj^ which it is provided, that when a debt is recovered or acknowledged in the king's court, or damages awarded, it shall be from thence forth in the election of him to have a WTit that the sheriff fieri facial of the lands and goods, or that the sheriff shall deliver to him all the chattels of the debtor &c. and the one half of his land, until the debt be levied upon a reasonable price in exi:ent. Upon this is founded the writ of elegit, by which all the goods of the debtor are delivered, at their approved value, into the hands of the creditor, and the one half of his lands are extended. There is nothing in this statute which indicates the time from which the land shall be bound, but by construction of the court immediately after its enaction, and ever since, the judgment has been held to bind the land, and the plaintiff might have execution of the lands, which defendant had at the time of the judgment, although he had aliened them bona fide before execution awarded. This construc- tion was adopted the more effectually to secure the just rights of creditors, and its propriety and justice have never been questioned or rendered doubtful by the experience of centuries. This is the law which the colonists brought with them from the mother country, and is yet the law unless changed by statute. A short time was sufficient to convince the inhabitants of the colonies, and those with whom they had commercial transactions, that the elegit was wholly insufficient, as a process, to enforce the pa\Tnent of ^ Only the opinion on this point is given. — Ed. 598 THE ENFORCEMENT OF JUDGMENTS debts. Much of the lands held by debtors, was wild and unculti- vated and would be an aimual incumbrance to the creditor, instead of procuring any annual proht. Such lands as were improved had no fixed or certain annual value, difficult to rent, and would prob- ably produce nothing unless the creditor would become the occu- pier, which was not often convenient. Thus, in fact, the lands of the debtor though of considerable intrinsic value, were totally beyond the reach of the creditor. Again; the progress of com- merce, the gradual decline of feudal notions and principles, and a more enlightened view of the relative rights and duties of men, had she\\Ti, that no part of the debtor's property should be withheld from the satisfaction of his debts, to aid the creditor by subjecting all the debtor's real estate to legal process for the payment of debts, and to change the process, making such estate liable to sale instead of extent, was enacted by the statute of 5 Geo. 2, eh. 7, sec. 4, in these words. " And be it further enacted by the authority aforesaid, that from and after the 29th day of September, 1732, the houses, lands, negroes, and other hereditaments, and real estate, situate or being within any of the said plantations, belonging to any person in- debted, shall be liable to, and chargeable with, all just debts, duties and demands of what nature or kind, soever, owing to any such person, to his majesty, or any of his subjects; and shall be assets for the satisfaction thereof in like manner as real estates are by the law of England liable to the satisfaction of debts due by bond or other specialty; and shall be subject to the like remedies, proceed- ings and process in any court of law or equity in any of the said plantations respectively for seizing, extending, selling or disposing of any such houses, lands, negroes, and other hereditaments and real estate towards the satisfaction of such debts, duties and demands, and in like manner as personal estate in any of the said plantations resjK'ctively are seized, extended, sold or disposed of for the .satisfaction of debts." When examining this statute with a view to the determination of the present question, I atlmit it shouUl be read as if the words " and shall be assets for the satisfaction thereof, in like manner as real estates are by law of England, liable to the satisfaction of debts due by bond or other sjjeeialty," were not in the .section, because they do most clearly relate to a diUVniit sul)jrct, to which the compari.son there made is jxiculiarly, and alont- applicable, and thus far entirely agrees with the supreme court of North Carolina in the ca.se of v. , Murpii. l(ep. PORTER S LESSEE V. COCKE 599 The first provision in the section is, that all the lands &c, of per- sons indebted, shall be liable to, and chargeable with, all just debts, &c. The last is, that the lands, &c. shall be subject to be seized extended, sold or disposed of, by any process in any court, &c. in like manner as personal estates are seized, extended, sold or dis- posed of, for the satisfaction of debts. It may now be remarked that the elegit is not taken away from the creditor by this statute, but on the contrary, is in express terms recognized and preserved. If the first provision had stood alone, the effect would have been simply to subject all the debtor's real estate to be extended under the elegit, and in that case it would not probably be contended by any one that the binding force of the judgment was affected; nor would it be denied that, taking the whole section as it stands, the judgment would bind the lands if the creditor elected to have the writ of elegit. But it is argued that the last provision destroys the lien of the judgment if the party resorts to a sale of the land, and that when the fieri facias is applied to the sale of land by this sec- tion, all the incidents, effects, and consequences of the fieri facias which attend it when applied to the sale of personal property, are necessarily introduced. That such was the intention of the legis- lature is evinced by their reference to the sale of personal estate; that the fi. fa. only binds goods from the test and therefore lands should only be bound from the test of the fi. fa. when it is used to subject them. We will examine these objections, and to do this satisfactorily, we will see, first, whether there is anj^thing in the statute of West- minster which creates this lien; second, if not, whether there is anything in the writ of elegit which produces this effect; third, why the fi. fa. only binds from the test, and the points in which the elegit and fi. fa. agree and differ, from all which we shall perceive upon what basis the lien of a judgment does rest, and whether the fieri facias destroys that basis. We have already seen that there are no express words in the stat. West, which indicates the binding effect of the judgment on lands; the same words are used with regard to goods and chattels, as lands. It is true, in the writ of elegit now generally in use, the sheriff is directed to deliver such lands as the defendant was seized of, on the day of the rendition of the judgment. This direction is only to inform the sheriff of the construction of law made upon the statute, and is merely a consequence of such construction. 7th Co. Rep. 131, Sellington's case; for many writs of elegit are to be found 600 THE ENFORCEMENT OF JUDGMENTS in books of most approved authority, where tliis direction is alto- gether omitted, Fitz. X. B. 594, (266 in mar.) 2, tSamid. Rep. 68; and the forms of writs used in judicial proceedings. Lord Coke tells us are only the evidence of what the law is and do not make the law, nor are the reasons of it. The writ in this case, was framed to carry into effect the statute, with such construction as the courts had given to it. Now we will examuie whether the lien of tiie judgment has any dependence on the process used to execute it, or whether the form of the execution can so far retrospect upon the judgment as to con- firm or destroy its force; for if it should be found that the lien of the judgment in England does depend on the elegit, then the argu- ment is fair to say, that when this writ is not used, the lien is re- linquished; but, if the lien of the judgment has no connection with the execution used, and depends upon other circmnstances and reasons, then we may fairly conclude that the sub.^titution of the fieri facias for the elegit was not intended, nor does destroy, the lien of the judgment. The elegit directs the sheriff to deliver to the creditors all the goods and chattels of the debtor except oxen and beasts of the plough, and also a moiety of his lands and tenements. Here, then, is the same execution directed against several species of property, and if the binding effect of this judgment de- pend on the writ, all will be ijomid in this case by the judgment. The lands are bound; 3'et it has been held by a series of adjutlged cases from the year books down to this time, that the gootls antl chattels are bound in this case only from the test of the elegit; 1 Roll. Ab. 893; 8 Co. Rep. 171, Fleetwood's case; 3 Atk. Rep. 200, Shiley v. Watts; Sug. on V'en. 474; Gilij. on Ev. 33. Again, a term for years, may by the sheriff under an elegit, either be extended, that is, he may deliver a moiety thereof to the plaintiff under the words in the statute, niedietatcm terra: sua;, 2 Inst. 396; 8 Co. 171; Gilb. on Ev. 35; or may sell the whole term to the jjlaintiff lis part of the personal, at a gross price approved by the jur\-. A term for years may also be .sold at connnon law under n Jiiri facias. Now, this is a case which will most conclusively shew whether the execution u.sed has any effect upon the judgment, or (Teates, or in any manntsr affects, the lien. Here wlicther the elegit or i\u'. fuTi facias Im? i.ssued; whether the term be extended or sold, the property is (jnly bound from the time executi(jn is awarded; Sug. on Yen. 49-1; 8 ( o. 171 ; 3 Atk. Rep. 200. This was the com- mon law with regard to the fieri facias, and when the term was porter's lessee v. COCKE 601 made extendible under the elegit, the change of process effected no change in the Uen; the fieri facias bound goods and chattels from its test, because they were goods and chattels, and on account of the nature of the property, and for this reason alone was it, that the elegit was held to bind goods only from the test, and upon this reasoning was it held that a lease-hold was not bound by the judg- ment, because it was a chattel, because it was goods; Sug. on Ven. 494, 5; and if the elegit binds to precisely the same extent with the fieri facias, when levied on personal estate, can any reason be given why the fieri facias when levied on personal estate, should destroy the lien of the judgment when made to operate on freehold estate ? I believe no reason founded on authority or justice can be rendered why it should have such effect, and by all just analogy when the fieri facias is levied on freehold estate, then it should, as the elegit does, conform itself in its operation to the nature of the property brought within its reach, 2 Bac. Ab. 700; 2 Roll. 472; and should truly execute the judgment to such extent as it operates upon the rights and property of the respective parties to it. There- fore I conclude as the writ of execution employed has, in the cases adduced, had no effect either to extend or limit the binding force of the judgment, that when the act of 5 Geo. 2, ch. 7, sec. 4, gave to the creditor the right to sell the debtor's and under the fieri facias instead of extending it under the elegit, it was not intended by a change of process to change and limit the effect of the judgment. The whole statute is made to extend the rights of the creditor, to secure to him the power of collecting his debt; and it would be singular, indeed, if, at the time the legislature gives to the creditor the benefit of the fieri facias upon lands, it intended to annex a condition to its use which might, and in many cases would alto- gether defeat the collection of his debt. The uniform course of judicial dicta, coming from judges of con- siderable learning and experience, although not amounting to authority, are yet entitled to much respect and tend to give greater confidence in the opinion now expressed. By the act of 1799, ch. 14, sec. 2, the legislature of this state have recognised the binding force of a judgment on lands, and have so limited this lien as to prevent any serious injury to purchasers bona fide from the judg- ment debtor.^ 1 For the effect of a judgment as a lien on land of the judgment debtor, see 1 Black, Judgments, 2d ed., Chap. XVI; 2 Freeman, Judgments, 4th ed., Chap. XIV. In England by the statute 27 and 28 Vict. c. 112 no judgment affects land 602 the enforcement of judgments California Code of Civil Procedure. Sec. 671. Immediately after filing the judgment-roll, the clerk must make the proper entries of the judgment, under appropriate heads, in the docket kept by him; and from the time the judgment is docketed it becomes a lien upon all the real property of the judg- ment debtor not exempt from execution in the county, owned by him at the time, or which he may thereafter acquire, until the lien ceases. The lien continues for five years, unless the enforcement of the judgment be stayed on appeal by the execution of a sufllicient undertaking as pro\'ided in this code, in which case the lien of the judgment and any lien by virtue of an attachment that has been issued and levied in the action ceases. Sec. 674. The transcript of the original docket of any judg- ment, the enforcement of which has not been stayed on appeal, certified by the clerk, may be filed with the recorder of any other county, and from such filing the judgment becomes a lien upon all the real property of the judgment deijtor not exempt from exe- cution in such county, owned by him at the time, or which he may afterward, and before the lien expires, acquire. The lien con- tinues for two years unless the judgment is previously satisfied or the lien othenvise discharged. EAVES V. GARNER et al Supreme Court of Georgia. 1900. [Reported 111 Georgia, 273.) Fish, J. C. C. Eaves brought his action against J. F. Garner, J. G. Weaver, and B. Y. Morgan, for damages which he alleged he had sustained by reason of the defendants having entered ujjon his land and cut and carried away certain timber. Upon the trial, to prove his title to the land, plaintilT olTered in evidence a sheriff's deed thereto, made in pursuance of a sale under an execution issued from a justice's court. He al.so olTered in evidence a coin' of such execution, with the entries thereon, the original having been lost. The following entry api)eared on the copy fi. fa.: " I know of no pers(jnal prcipcrly in tlic possession of the defendant, on which to »i) iv\ to \>c. 11 rhari^p on if. until it 1i;im hccn :ii'iu;illy lidivcrril in «'\c('ii(ion liy thf! Hhcriff, and tli(! writ is rtrcjuircd to l)e registered. Sec W illiains, Heal ProjH'rty, 'i'Jd ed., pp. '271-281. — Ed. PENHALLOW V. DWIGHT 603 levy this fi. Ja. This 14th day of February, 1848. James S. Trible, Cons." The court excluded the copy fi. Ja., and the plaintiff excepted. Section 4167 of the Civil Code, which is a codification of the act of 1811, provides that " No constable shall levy on any land unless there is no personal property to be found sufficient to satisfy the debt, which fact must appear by an entry on the execution, to be levied by a constable of the county where such execution was issued, or where the property to be levied upon may be found." The entry of the constable upon the^. fa. in this case did not com- ply with this section of the code. Instead of an entry of no per- sonal property to be found, which seems to imply that the constable should make some search for such property, he made an entry that he knew of no personal property in the possession of the de- fendant on which to levy the fi. fa. The defendant may have owned sufficient personalty to satisfy the execution, which at the time of this entry was in possession of some one else, and the con- stable may have known this fact, and yet his entry would be true. There was no error, therefore, in sustaining the objection to the introduction of the fi. fa. in evidence. There seems to have been no objection to sheriff's deed going in evidence, but, as the plaintiff offered no other evidence, the court did not err in granting a nonsuit. Judgment affirmed. All the Justices concurring.^ PENHALLOW v. DWIGHT. Supreme Judicial Court of Massachusetts. 1810. [Reported 7 Massachusetts, 34.] Trespass for breaking and entering the plaintiff's close, and cut- ting down and carrying away his corn there growing. The parties submitted the cause to the determination of the Court upon an agreed statement of facts. The defendant, at the time when, &c., was a constable of Belcherto^vn, in which the locus in quo was situated, and he entered the close, and cut and carried away the plaintiff's corn thereon gro\\dng, and then fully ripe and fit to be gathered; claiming authority so to do, by virtue of an execution to him directed, then in full force, and issued in due form of law, upon a judgment of the Court of Common Pleas, for ^ See 2 Freeman, Executions, 3d ed., sec. 279; 8 Encyc. of PI. &Pr. 514. — Ed. 604 THE ENFORCEMENT OF JUDGMENTS the county of Hampshire, against the plaintiff, and in favor of one Eklad Parsons. The said corn being sold by the defendant at publick auction, accorchng to law, produced the sum of 22 dollars, 49 cents, which sum, after deducting his fees, and the expenses of gathering the com, the defendant endorsed on the said execution. If the court should l)e of opinion, that the defendant had a right, by virtue of the authority aforesaid, to enter the said close, and cut and carry away the plaintiff's corn, in manner and for the cause aforesaid, it was agreed that jutlgment should i)e rendered for the defendant for his costs; othrewise for the plaintiff, for 25 dollars damage, with his costs. Curia. As the tlefendant had the right, and indeed was obliged by the duty of his office, to enter the close of the plaintiff, and to seize any personal jiroperty of the plaintiff, whereby he might sat- isfy the execution he then held against the plaintiff; the only ques- tion is, whether corn, then in a proper state to be gathered, but found standing, might lawfully be cut downi and disposed of, to raise the money due upon the execution. And we have no doubt that corn, or any other product of the soil, raised annually by labor and culti- vation, is personal estate; and would go to the executor, and not to the heir, on the decease of the proprietor. It is therefore liable to be seized on execution, and may be sold as other personal estate. An entry for the purpose of taking unripe corn, or other produce which would yield nothing, l)ut in fact l)e wasted and tlestroyeil, by the very act of severing it from the soil, would not be protected by this decision. Let the defendant have judgment for his costs.^ ALBRECHT and others v. LONG and others. Supreme Court of Minnesota. 1878. [Reported 25 Minnesota, 163.1 GiLFiLLAN, C. J.2 The defendant Long was sheriff of the County of Waseca, and Stevenson was his deputy; executions issued against the proj)erty of Sherwins were delivered Jis follows: One in favor of (Jharli^s Shedd, to the sheriff iiimself, at 10.30 o'clock r..M. • Compare Davidnon v. Wiildon, iil 111. 120; C'hoshiro Nut. liiiiik v. Jewett, 119 MfiHM. 2J1. A Iciuwliold iiilrrcHt in land iii;iy Ix' Irvicd upon iiiid sold ui)uu a Jicri facias. DftizHI V. Lyndi, 4 W. A S. (I'u.), 2.W. — Ku. * i )rilv till- iipmidn nf the court it) here given. — Ed. ALBRECHT V. LONG 605 of March 19, 1877; one in favor of Chancy Hardin et al., and another in favor of J. S. Ricker et al., to the sheriff in person, at 2 o'clock A.M. of March 20; and one in favor of these plaintiffs, to the deputy, at 6 o'clock a.m. of the same day. The deputy levied this last execution at half-past six a.m. of the same day, and took possession of the property. About half an hour thereafter, the sheriff levied the three executions delivered to him in person, upon the same property, and, upon his request, the deputy delivered to him the plaintiff's execution, and the possession of the property. The sheriff advertised the property for sale under several execu- tions, not naming either of them, and sold the property, and applied the proceeds, after deducting his fees, to the payment in full of the Shedd execution, and the remainder upon the execution of Hardin et al, and returned the plaintiff's wholly unsatisfied, whereupon plaintiffs bring suit against the sheriff and the sureties in his official bond. The question presented is, whether the levy of an execution gives the execution creditor a lien upon the property, which entitles him to priority over other executions in the hands of the same officer against the same debtor, delivered to the officer before, but not levied till after, his ? For these executions are all to be taken as delivered to the sheriff. The deputy is not an officer having a separate official existence from that of the sheriff. He is an officer of the sheriff's, whose powers and duties, so far as they affect the public, it is true, are defined by law. But he holds the office at the pleasure of the sheriff, is appointed and removable by him, and civilly responsible to him, and not to the parties whose writs come into his hands. He must act in the name of the sheriff, and not in his own name. All his acts are, in law, the acts of the sheriff; and the responsibility, civilly, for such acts done within his authority, is that of the sheriff. Our statutes do not, as do the statutes of some of the states, alter in any way the status of the deputy. It is the duty of the sheriff, upon a writ coming into his hands, to use due diligence in the execution of it. It attaches to the WTits as they come into his hands, and it follows that it is his dut}' to execute first those which are first delivered to him. Upon several executions in favor of different creditors against the same debtor, it is his duty to the creditor in that first delivered, to execute that first; and to the creditor in the second, to execute that second; and so through them all. This is the duty he owes to the several creditors. But the rights of the creditors, as against each other, are not necessarily controlled by it. 606 THE ENFORCEMENT OF JUDGMENTS At the commoii law, an execution bound the goods of the debtor from the time of the te^te, even though they were subsequently transferred to a bona-fide purchaser. The statute 29 Charles II., c. 3, § 16, provided that the execution " shall bind the propert}^ of the goods against which such writ of execution is sued out, but from the time that such \\r'\\ shall be delivered to the sheriff, under-sheriff or coroner, to be executed." Under the common-law rule, the execu- tion operated as a lien in favor of the crecUtor for the satisfaction of his debt, from the time of the teste, and, mider the statute, it operated as such lien from the time of its delivery to be executed. And the latter would continue to be the rule, were it not for the provisions of the statute of this state. Gen. St. c. 60, § 269, enacts that "until a lev}-, property' not subject to the lien of the judgment is not affected by the execution." So that the creditor acquires a hen on the property, by virtue of his execution, only from the levy. The property is not affected by the teste, nor the delivery to the sheriff. The levj- fixes the rights of the creditor as to the specific property. It is argued that the statute 29 Charles II., and the General Statutes were passed only for the protection of bona-fide purchasers, and therefore do not affect the rights of execution creditors as against each other. If this were so, their rights would be controlled by the comanon-law rule, that the execution binds the goods from its teste, and the execution last delivered and levied might take precedence of all the others, because of the priority in its teste. We do not think the statute was intended to operate only as between the execution creditor and a bona-fide purchaser, as claimed, but it Wiis intended to define absolutely, as its language indicates, the rights of the creditor as to the specific i)roi)crty, and as between him and all others. The execution first levied, then, has the first lieu on the ])r()pcrty, though there may be others in the hands of the sheriff', which were (iclivcred to him Ix'fore the one levied. Russell v. Lawton, 14 ^\'is. 202; Knox v. \Vel)ster, 18 Wis. 406. The creditors in e.xecu- tioas afterwards levied cannot claim to be paid out of the property, until the one first levied is satisfied. This would be so in a contest between the creditcjrs, and it must be so in a dispute between the creditor having the fir>t lien l)y levy, and the slierilT. The remedy of the creditor in the execution first delivered is against the slierilV. If the latter, through negligence, omit to levy the first execution till a second has been ie\ic(l, and loss therel)\' accrues to the first execution creditor, an action will undoulitedl> lie. WISE V. DARBY 607 It does not follow, however, from the rule of law that a sheriff and his deputies are regarded as one officer, that where several executions against the same debtor are placed, some in the hands of the sheriff in person, and others in the hands of his deputy, and in consequence thereof, and without actual negligence of the sheriff or deputy holding the execution first delivered, a subsequent execu- tion is first levied, that the sheriff is liable to the creditor in the first execution. When it comes to a question of diligence, the law recognizes the fact that the sheriff and his deputy are different persons, though in theory one officer. And as it does not require impossibilities, it regards the question of diligence in view of that fact, and of what may naturally happen in consequence of it. Russell V. La^vton, 14 Wis. 202; Whitney v. Butterfield, 13 Cal. 335. Order reversed, and new trial ordered.^ WISE V. DARBY, Administrator, &c. Supreme Court of Missouri. 1845. [Reported 9 Missouri, 130.] Napton, J. This was a motion made by Darby, the defendant in error, in the court of common pleas of St. Louis county, asking that court to instruct the sheriff to sell certain property levied on by virtue of an execution in favor of said Darby against M. & F. Steigers, and to apply the proceeds to the satisfaction of that execution. The motion was resisted by the plaintiffs in error, who claimed the property, by virtue of executions in their favor, issued anterior to the executions in favor of the plaintiff in error, and first placed in the hands of the sheriff. Affidavits in support of the motion, and counter affidavits in behalf of plamtiffs in error, were read on the hearing of the motion. The court sustained the motion, and di- rected the proceeds of the sale to be paid over to the defendant in error. It appears from the affidavits, and from the returns made upon each of the executions, that the execution in favor of Darby, adm'r of Gross, against M. & F. Steigers, issued on the 24th J\larch, 1843, for the sum of about eight hundred dollars, and was placed in the 1 In many jurisdictions section 16of the Statute of Frauds is law. 2 Freeman, Executions, 3d ed., sec. 200. In many jurisdictions, however, as in Minnesota, the e.xecution lien arises from the actual levy. Ibid., sec. 201. — Ed. 608 THE ENFORCEMENT OF JUDGMENTS hands of the sherifif on the same day. At that time, the sheriff had in his hands two executions against the same parties, one in favor of S. Wise, and tlie other in favor of P. Wise, amounting to about seven hundred dollars; but amiexed to each of the last mentioned executions, were written instructions by the plaintiff's attorney directing the sheriff" not to le\y, until ordered by said attorne}'. The defendant in error directed the sheriff to levy his execution forth\\'ith, and the sheriff did so. On the evening of the same day, and before the inventory of the property levied on under the exe- cution of Darby was completed, the attorney of the plaintiff in error went to the Sheriff, and tore off the written instructions appended to the executions, and directed an innnediate levy on the same prop)erty. The Sheriff levied, made sale and returned the facts especially, bringing the money into court, to be paid over as the court should direct. . . . The main question for determination is: where an execution is delivered to a sheriff, and the plaintiff or his attorney directs the officer not to levy, and a second execution is placed in the hands of the same officer, which is first levied, and the goods sold under both writs, which shall be first satisfied ? Though the ^^Tit of execution binds the goods from the time it is delivered into the hands of the officer, the property of the defend- ant in the execution is not divested until he le\y. As a conse- quence of this principle it has been held, that where two executions are delivered to the sheriff, and he levies and sells under the one last delivered to him, such sale passes a good title to the purchaser, and the only remedy of the plaintiff in the first execution is against the officer. Smallcomb v. Buckingham, 1 Salk. 321. And Lord Holt intimated in this case, that if the person who sued out the first writ concealetl it in his hand, the sheriff may rightly make execution on another writ, which bears the last test, but came first to his hands. In such ca.se the sheriff would not be responsible. This was Jjcfore the Statute providing that writs should bind only from the time of their delivery. But where two writs of Jicri facin.s were delivered to the sheriff on different days, and the levy WU.S made under the second execution, but no sale actually nuule, the sheriff wa« held justified in paying over the proceeds to satisfy the first execution. Hutchinson v. Johnson, 1 Term R. 7'M. In the ca.se of Payne t'. Drew, 4 I']:ist .')2;i, :i writ of sefiuestralioii i8HUe-, and still retain his priority. Judgment ajjirmed} PEASE V. PRICE. Supreme Court of Iowa. 1897. [Reported 101 loica, 57.1 This is an action for judgment on three promissory notes, and on an account. An attachment was issued in the action, and levied upon certain farming implements and tools, as the property of the defendant. Defendant moved to discharge the attached property, as exempt to him as a farmer, which motion Wiis sustained, and from the order discharging said property the plaintiff appeals. Aflimied. Given, J. Defendant states, as the grounds of his motion, that he is a married man, the head of a family, a resident of Clayton county, Iowa; that his business is that of a farmer, and that the property levied upon is tlie same that he Iwus heretofore u.sed in his business of farming, and which he i)urjx)ses, expects, and intends to continue to use in and alx)ut the business of fanning ; and that it is all the farm implements of which he was possessed at the time the same were seized. There is no dispute but that if, at the time of the levy, January 18, 1895, the defendant was a farmer, the property levied ufxjn was exempt to him, under section '.W2 of the Code. The evidence shows, without conflict, that defendant was engaged in the l>usine.ss of fanning, and used the imj)lements in question in that business, up to and for some years prior to (he first of March, 18^)-i, and that, having no farm of his own, he rented from others. In March, 1894, he and his family moved into the town of Strawberry Point, where they contiiiuecl (o reside at the > Gilmore v. Davis, 84 111. 487, accord. — Eu, BROADSTREET V. CLARK 611 time of these proceedings. During that time defendant was engaged, to some extent, as a barkeeper in a saloon, and made some efforts to secure a place in which to start a saloon of his own. He testifies that the only reason why he was not using said imple- ments as a farmer was that he had not been able to rent a farm suitable for the amount of help that he had in his own family. He says, " I have never abandoned the business of farming, but, upon the contrary, have always intended, and do now intend, to continue to follow and conduct the business of farming." The fact that he sought other employment during the time that he was unable to procure a farm, is not in conflict with this statement as to his intention. It appears that in December, 1894, the defendant advertised some of these articles for sale, but that act does not show that he did not intend to continue in the business of farming. It also appears that defendant said on one occasion that he had sold part of said implements to his son-in-law, but it does not appear that the sale, if ever made, was consummated. The articles were taken as the property of the defendant, and from his posses- sion. Under the ruling announced in Hickman v. Cruise, 72 Iowa, 528 (34 N. W. Rep. 316), it is not necessary that the defendant should have actually engaged in farming at the time the property was taken. In that case, as in this, the party claiming the exemption had been engaged in farming as a tenant, but was not so engaged, and had not leased a farm, for that year. It was held, however, that he was a farmer, \vithin the meaning of the statute, and the court below properly so held in this case. Affirmed. BROADSTREET v. CLARK, Defendant and THE CHICAGO, MILWAUKEE & ST. PAUL R'Y COMPANY, Garnishee. Supreme Court of Iowa. 1885. [Reported 65 Iowa, 670.) The defendant railroad company was garnished as the supposed debtor of its co-defendant. Judgment was rendered against both defendants, and they appeal. See VERS, J. Upon being garnished, the railroad company answered that.it was indebted to Clark, the judgment debtor, who was one of its employes in Dakota territory, and that he was a married man, and the head of a family, and a resident of said terri- tory when the work and labor were performed for which the in- 612 THE ENFORCEMENT OF JUDGMENTS debtedness was incurred, and that the same had been earned within ninety days prior to the garnisimient ; that under the laws of said territory said earnings were exempt from execution. Clark, the judpnent tlel^tor, intervenetl in the garnislmient proceecUng, and in sulxstance pleaded the same facts as above stated, and asked that the garnishee be discharged. Upon motion of the plaintiff, judg- ment on the answer of the garnishee and petition of intervention was rendered for the plaintiff, and we are required to determine whether the court erred in the rendition of such judgment. We regard it as the settled rule in this state that the exemption laws of another state or territory cannot be j^leaded or relied on as a defense by either the garnishee or judgment debtor. Newell v. Hayden, 8 Iowa, 140; Leiber v. Union Pac. ll'y Co., 49 Iowa, 688; Moone^' v. Union Pac. R'y Co., CO Iowa, 346. See, also, Bur- lington & ]\I. R. R'y Co. V. Thompson, 31 Kan., 180, and authorities there cited. Ajjirmed} SHINN V. MACPHERSON et Ux. Supreme Court of California. 1881. [Reported 58 California, 59G.] Ross, J. The plaintiff and the defendant, John Macpherson, formed a copartnership June 2d, 1879, which continued to Septem- ber 24th, 1880, when it was dissolved by mutual consent. During this time John Macpherson was the owner of a certain house and lot, where he resided with his wife, the defendant Esther Suther- land Macpherson, and on wiiich he had previously, to wit. May 19th, 1877, executed to one Borel a mortgage to secure the payment to him of the sum of one thousand seven hundred dollars in gold coin. A few days previous to the dissolution of the partnership between Shinn and Macpherson, that is to say, on the 16th of September, 1880, Aii*s. Macpherson filed a declaration of her intention to claim the house and lot lus a homestead, and the next day — September 17th — John Macpherson secretly and sur- reptitiously drew from the assets of the firm of Macpherson & Shinn the sum of two thousand f(jur hundred dollars (there being nothing at the time due him from the lirm or from Shiim), out of ' Hut wc Drake v. Lake Shore & M. S. 11. II. Co., 0'.» Midi. KiS, 37 N. W. 70, l.J Am. St. lt<'p. Ii82. Compare Mitchell v. Sli\ The plaintiff read in evidence the deposition of N. Roplee, which was taken under a commission. The second interrogatorj^ to the deponent was as follows: '' What was the situation of said John Harmon, on the 13th day of July, 1830, as to property ? " In answer to this interrogatory-, the deponent testified, " that the said John Harmon was considered, on the 13th of July, 1830, in good circumstances, as to property." The defendant objected to the achnission of this answer in evidence. The plaintiff contended that the objection should have been made to the interrogatory before the commission was issued. The judge decided, that the interrogatory was well enough, but that the answer was not an answer to the interrogatory; and it was rejected. The judge, in order to obtain the opinion of the jur\' upon the other evidence, instructed them, that the silver coin was attach- able; but that if it was not, the plaintiff could not take the objec- tion. 620 THE ENFORCEMENT OF JUDGMENTS The jun- returned a verdict for the defendant. The plaintiff excepted. Wilde, J., delivered the opinion of the Court. Whatever doubts may have been entertained formerly on the question, whether mone}' be attachable and can be taken on execution or not, they are, we think, entirely removed by the case of Turner v. Fendall, 1 Cranch, 117. There seems to be no good reason why money should not be attached and taken on execution as well as other property. The quaint reasons given in some of the old cases, viz. that money Ciumot be identified, and caimot be sold, seems to have ver>' little weight; for money may be identified as well as other property, though not always with equal facility. Then as to the sale of money, that to be sure would be an absurdity, and for that reason the St. 1783, c. 57, § 5, which directs the sale of goods or chattels taken on execution, is not applicable to money; but this by no means shows, that money cannot be taken on execution. On the contrary', the sheriff is expressly directed by the form of the exe- cution as prescribed by law, to cause the execution to be paid and satisfied out of the money, goods or chattels of the debtor. This is decisive as to the question, whether money may be taken on execution. And if money is liable to be taken on execution, we think it equally clear that it is liable to attachment. The object of an attachment is, to secure such property of the debtor as may be lial)le to be taken on execution. The officer is commanded to attach the goods and estate of the debtor, which certainly includes money. A jjecjuest of a man's goods and estate would undoul)tedly pass money; and the command of the writ, therefore, authorized the attachment. But it is objected, tliat the money attached was not the property of Harmon, and this objection would l)e well founded, if it had ai)i^<'are(l, that the plaintiff was an officer or an agent or attorney lawfully authorized to collect the money. But he ol)tained the money by means of a fraudulent assignment, and tus against the creditors of Harmon he had no right or property, and therefore cannot maintain this action. By the payment to the phiintiff the debt to Harmon was discharged, and the money became iiis prop- erty, for it could not become the i)rop('rty of the plaintiff, by reason of the fraud. fii regard to the de[>osition, we think it was rightfully rejected. The iinswer of the deponent wjis hearsay evidence, !us to the cir- cumatuncca of Harmon, slating what they were reputed to be, and WILDER V. BAILEY AND DARLING 621 not what he knew them to be. It was contended that the objection should have been made to the mterrogator>' before the commission issued. But the interrogatory was unexceptionable. The witness was asked, what were the circumstances of Harmon, and not what they were reputed to be. Judgment of the Court of Common Pleas affirmed} WILDER V. BAILEY AND DARLING, his Trustee. Supreme Judicial Court of Massachusetts. 1807. [Reported 3 Massachusetts, 289.] The question in this action arose from the answer of the trustee, and from an agreement on record, from both which it appeared that Darling was a deputy sheriff, and had collected a sum of money on an execution issued upon a judgment, in which Bailey, the princi- pal defendant, was the creditor, and Caleb Wilder was the debtor. Darling held this money at the time of the service of this process upon him, the said execution being returnable at a period posterior to the said service. The question for the determination of the Court was, whether Darling, upon these facts, was liable to a foreign attachment as the trustee of Bailey, in virtue of his holding the said sum of money; and it was submitted to the Court, without argument, at the last October term in this county. The cause was continued for advisement; and now, at this term, the Court delivered their opinion as follows : - — Parker, J. Actions similar to this are frequently instituted at the instigation of judgment debtors for the purposes of revenge or delay; and there has been a prevailing opinion at the bar that such actions may be supported. This opinion arose from the very general and comprehensive words of the statute, by which all the goods, effects and credits of the debtor are made subject to this species of attachment, in whose hands or possession soever they may be found. Notwithstanding these expressions, it was decided that an aggregate corporation is not liable to this process, because they are not capable of disclosing upon oath. 1 Turner v. Fendall, 1 Cranch (U. S.), 117, 2 L. ed. 53; Handy v. Dobbin, 12 Johns. (N. Y.), 220, accord. Compare Clarke v. Larremore, 188 U. S. 486, 47 L. ed. 555, 23 S. Ct. 363. — Ed. 2 The concurring opinions of Sedgwick, J., and Parsons, C. J., are omitted. — Ed. 622 THE ENFORCEMENT OF JUDGMENTS I am ven' glad that the question in this case is presented to ns in so simple a form, that it may be put at rest, and a check given to a practice, from which much mischief has unquestionably arisen. When an officer receives money upon an execution, the law pre- scribes his duty in relation to it. He is not boimd to pay it over to the creditor until the return day of the execution. From his receipt of it until that day, it is not the creditor's money, but is in the custody of the law; and in some respects it is still under the control of the law. I am decidedly of opinion that the trustee in this case carmot be held. Sewall, J. I consider the statute giving this process of foreign attachment as a verj- beneficial one, and am therefore for applying a liberal construction to it. But there must be bounds to this liber- ality. In the case before us, an officer, in execution of a precept of the law, has received money, for which he is accountable to a third jierson. An attempt is made to interrupt the execution of the precept, .and to divert the money from the course which the law has prescribed. If such practice should be permitted, great incon- venience- and mischief would be the consequence. The money was in the custody of the law, and in my opinion was not liable to be arrested in the hands of the officer. Trustee discharged.^ BROWER, Sheriff &c., v. SMITH and another. Supreme Court of Wisconsin. 1863. [Reported 17 Wisconsin, 410.1 By the Court, Paine, J. The Dodge County Bank made an assignment to Lewis & Schuyler, and delivered to them, among other things, its bcxjks of account. Kellogg & Larke sued tiio bank, and summoned Lewis & Schuyler as garnishees. They rc(;overed judgment against the bank, and it was also adjudged, a.s against tlu- garnishees, that the lussigninent to them wjus void, and that the pro[)erty they held was the property of the bank and they were ordered to deliver it over to the sheriff, which they did. The defendants in this suit were indebted to the bank, lus ' Compare Thf)riii)H()n v. Brown, 17 Tick. (Mii-ss.), Kl'J, ;m(l rrriitis.s v. HUhh, 4 Vt. r)l'.i, in wliich, uiulor Hitniliir fiictw, im iittiichincnt wjus disnllowt'il. But HWj W'ehic V. Conn«;r, v'i N' Y. '231, corUra. Sec Dnikc, AtLacbmuut, 7th cd..BCc«. 251,500. — Ed. BROWER V. SMITH 623 appeared by its books of account, and this action is brought by the sheriff to recover that debt. Subdivision 4 of section 54, chap. 130, R. S., concerning at- tachments, provides that until the judgment is paid, " the sheriff may proceed to collect the notes and accounts and other evidences of debt that may have been seized or attached by virtue of the attacimient, or that may have been delivered up by any person summoned as garnishee," &c. And the question is, whether the accomit against these defendants has been so attached as to en- able the sheriff to maintain this action. The respondent contends that this result follows from the mere fact that he has obtained possession of the books of account of the bank, and that the possession of those gives the same right to maintain suits for the accounts appearing in them, as would the seizure of a promissor>' note due the bank, to maintain a suit on that. This conclusion is based upon the claim that books of account are evidences of debt, and that our statute defines prop- erty as including evidences of debt. But we are of the opinion that books of account are not such evidences of debt, that the mere obtaining possession of them by an attaching officer constitutes any attachment of the debts mentioned in them. Those evi- dences of debt which may be attached by mere seizure, are only those which are complete and perfect evidences in themselves. But account books are not such. They are not evidence at all until certain facts are established in respect to them by the oath of the party keeping them, or of the person who made the entries; and in no case are they evidence of the pajnnent of money beyond the amount of five dollars in one item. R. S., chap. 137, sees. 88, 89. We are of the opinion, therefore, that the mere obtaining possession of these books, did not vest in the sheriff any right to bring this suit. The respondent relies on the language already quoted from sec. 54, to the effect that the sheriff shall " proceed to collect the notes and accounts, &c., which may have been seized and attached, or may have been delivered up by any garnishee." But certainly it could never have been designed to give any greater effect to the possession of the account books when obtained from a person who happened to have them in his possession as garnishee, than would have been given if the sheriff had taken them from the custody of the attachment debtor himself. The phrase " that may have been delivered up by any person summoned as garnishee," must be construed as applicable only to those kinds of property of which 624 THE ENFORCEMENT OF JUDGMENTS possession alone would establish the right, as notes and other instruments, in accordance with the maxim, reddendo singula singulis. Our conclusion seems to he placed beyond any doubt by the provisions of section 13, which point out specifically how " a debt or other property incapable of manual delivery to the sheriff," may be attached, wiiich in the case of a debt is, by leaving a certi- fietl copy of the attaclmient with the debtor, with a notice showing the property levied on. Now, if any other creditors of the bank, after the sheriff got possession of the account books, had attached the debt due from these defendants, by complying with this section, it is evident their attaclmient would have held it, as against this action, if priority is to be allowetl at all among creditors of such a corporation. It would be clearly so, if the attachment debtor was an incUvidual. And yet it would be so only because the prior possession of the account books of the debtor did not constitute any attachment of the debts appearing in them. For these reasons, we think the debt due from these defendants, has not been attached, as there is no pretense that section 13 was complied with; and consequently that this action cannot be sustained. The judgment is reversed, with costs, and the cause remanded for a new trial. ^ O. L. PACKARD MACHINERY COMPANY /•. LAEV, Garnishee. Supreme Court of Wisconsin. 1898. [Reported KM) Winconain, 044.) WiNSLOW, J.- . . . The objection that corporate stock cannot be reached by garnishing the person in possession of the certificates seems also fatal to the i)laintiff's c;use. Clarnishnieut simply reaches property, moneys, credits, and effects of the defendant in the p'Tnent of debts. A liquor dealer may be licensed to sell liquors at a certain place, for a certain time, for which privilege he is required to pay $1000 per annum. That privilege is worth to him much more than he is required to pay; but is that privilege property which may be sold on execution, or reached by a creditor's bill, for the pa>Tnent of debts ? We have never so understood the law. A peddler or an auctioneer may be licensed to carry on his vocation mthin a certain district, for which he may pay a stipulated sum of money. The profits arising from the privilege of exercising the right may be much larger than can be earned by a person exercising the right to transact business on the floor of the board of trade, and yet we have never understood that such a privilege was liable to be seized and sold in satisfaction of debts. The attorney and the physician are licensed to practice their professions. It costs money to obtain such a privilege. It may be, and is, a valuable right, and yet such a right cannot be taken by a creditor's bill and sold in satisfaction of a debt. The same may be said in regard to various other privileges which may be, and often are, conferred upon persons in the different pursuits of life. A certificate of membership in the Board of Trade of Chicago empowers the person who is admitted as a member to attend the meetings of the board, and deal in the various products of the country. This right to appear at a certain place and transact certain business, in our judgment is not property, but it is a mere privilege conferred upon the member, which cannot be reached and sold by the process of courts. It is a right which may be regarded as valuable, but which cannot be divested or destroyed, except by 630 THE ENFORCEMENT OF JUDGMENTS the board itself, for a failure of the member to conform to the rules ami regulations of the association. This view is in harmony with the rule announced by the Supreme Court of the State of Pemisylvania, where a similar question arose. Thompson v. Adiuiis, 93 Pa. St. 55; Pam-oast v. Gowen, id. 66. We have been referred to some cases which seem to hold a dif- ferent view, but ^^^thout entering upon a review of the cases cited we do not think they establish the correct rule, and we are not inclined to follow them. The judgment of the Appellate Court will be reversed, and the cause remanded. Judgment reversed.^ LEGGETT, As Assignee, Etc., v. WALLER. Supreme Court of New York, Special Term. 1902. [Reported 39 Miscellaneous Reports, 408.1 Fitzgerald, J. This is an application by a judgment creditor for the appointment of a receiver of the property of his judgment debtor as disclosed by the examination of the latter in supple- mentary' proceedings. The property in question consists of a seat in the Consolidated Exchange, of the estimated value of $2000, but against which the debtor testifies there are debts, for money loaned, now outstanding. The application is opposed upon the three grounds: that the examination discloses no property to which the receivership could attach; that the seat and its attentlant privileges constitute the defendant's necessary working tools and, as such, are exempt from judgment creditors, and finally, that the cases in which such applications have been granted concerned only the New York Stock Exchange, the rules of which are different frcjin those of the Consolidated Exchange. So far as the judg- ment creditor's right to the receivership is concerned the first objection is of no force. The examination does disclose that the debtor owns a seat in the Consolidatetl lOxchange of the estimated value of S20(J0. It is true that the examination states that jigainst this seat there are claims of other members; and these claims, un- der the rules of the a.s.sociation, have preference over and are to be paid before all other claims. The debtor does not show, however, the nature or extent of these claims or disclose the j)r()l)al)ility that ' A jKrtition for rchcttrinKwas (lei»ii-tl. Tln! opinion of C'rain, J., iiml llu- ilis- KUlinK opiniott of Mulkey, J., on the jH;tition, lire omitted. — Eu. LEGGETT V. WALLER 631 the amount thereof is sufficient to exhaust the fund that might be created by a disposition of the seat; and it may be that he has a substantial equity therein, to which the receiver would be entitled. Where there are conflicting claims against the debtor's property, the court carmot try and determine them, but should appoint a receiver (Teller v. Randall, 40 Barb. 242; Corning v. Tooker, 5 How. Pr. 16), who will receive such title to the property as was in the judgment debtor and subject to the conditions and restrictions by which it was surrounded in the latter's hands. The alleged existence of the other indefinite claims should not prevent the receivership, though it may subsequently cause that receivership to be of no practical benefit, so far as a realization of assets is con- cerned. The second objection is made upon the authority of Keiher v. Shipherd, 4 Civ. Pro. 274, where it was held that the share in the New York Law Institute of the value of SI 50, held by the judgment debtor, a lawyer in active practice, and the privilege it confers, constituted his necessary working tools and library as a member of the legal profession, and as such was exempt from judg- ment creditors. That case is not identical A\ith the one now before the court, for, though the constitution of the law institute and the nature and extent of the privilege of membership therein were not in that case and are not now fully set forth before the court, for the purpose of comparison, it may be said that the share and its attendant privileges are commonly supposed to consist of the right to make use of the books and facilities supplied by the institute. These books and sunilar facilities constitute the working tools of the lawj'er. It is financially and physically impossible for the ordinary practitioner to own and keep all or most of the books in which the law is recorded or expounded, but he may obtain access to and the use of them by securing membership in an association which does possess them, and when he does, that membership con- stitutes, in law, his books or library or working tools. Such is the full extent and significance of the decision referred to, as is evident from the authority upon which it is based, viz., Robinson's case, 3 Abb. Pr. 466, where it is held that the professional books neces- sary to a professional man who supports his family, for the practice of his profession, are exempt from execution as a part of his family library. The membership in such an institute, with its pri\-ileges as above stated and as commonly understood, is essentially dif- ferent, in legal nature, from the valuable right, license or franchise to transact business, in a special board or exchange, with a limited membership, and with peculiar rights and suitable facilities for the 632 THE ENFORCEMENT OF JUDGMENTS conduct of such business. Again, even assuming that the seat in question constituteti the judgment debtor's working tools, it would, under section 1391 of the Code, be exempt only to a smn not exceeding §250 (Faxon v. Mason, 76 Hun, 408); whereas the debtor's own testimony shows it to be now worth about S2,000. The thirtl olgection of the debtor seems to concetle that so far as seats in the New York Stock axid Cotton Exchanges are concerned, they are subject to the claims of outside, including judgment, creditors, and receiverships thereof may be ordered; but it further asserts that by reason of the different rules of the Consolidated Exchange, a seat in the latter is not subject to such claims or re- ceivership. The differences between the rules of the said exchanges, and consequently the differences between seats or memberships therein and the effect of these cUfferences upon the merits of this application, are not i)resented to the court. It has been held that a membership in the New York Cotton Exchange is property which passes to a receiver, who may maintain an action to compel the debtor to convey his seat to the member or to a member-elect with whom the receiver may negotiate for its sale. Ritterband v. Baggett, 4 Abb. N. C. 67; Powell v. Waldron, 89 N. Y. 328. The Court of Appeals, in People ex rel. Lenmion v. Feitner, 167 N. Y. 1, indicates, at page 6, a difference between the rules and regulations of the Stock Exchange and those of the Cotton Exchange. But an examination of these portions of the judicial authorities which quote the provisions of the constitution and by-laws of the Stock Exchange indicates that, so far as the nature of the membership and the merits of this application are concerned, they are very similar to and in many respects identical with those of the Con- solitlated Exchange, which are here referred to in opposition to this motion. Ami a membership in the former exchange has frequently been judicially declared to be property which passes to assignees in bankruptcy, is subject to the claim of creditors, and of which a receiver ma^' be a])i)ointed. Matter of Ketchum, 1 Fed. Repr. 840; Hyde v. Woods, 4 Otto (U. S.) 523, referring to member- ship in tlu! San Francisco Stock and ICxchange Boanl; Grocers' Bank v. Muri)hy, «iO How. Pr. 426; Helton r. Hatch, 109 N. Y. 593; People ex rel. I^mmon v. Feitner, 1(>7 N. Y. 1, 7. As a final answer to the last objection of the judgment debtor, we have in the cast; of Hooinc; v. Swan, 1 ") ( 'iv. Pro. 'M\, an instance not only of the app(). Statutes substaiiti;ill\- the same ;is ours lia\c been hell] \\) be constitutional in State v. liecht, '2.'.\ Mnui., Ill, and /// re Burrows, 3.3 Kan., ()7o; S. C. 7 Pac. Rep., 11'.). EIKENBERRY & CO. V. EDWARDS 635 Under the chancery practice as it existed at the time the con- stitution was adopted, a person could be deprived of his hberty or property, and such deprivation has always been regarded as having been accomplished by " due process of law," which has been de- fined to be " law in its regular course of administration through courts of justice." Happy v. Mosher, 48 N. Y., 313; Mason v. Messenger, 17 Iowa, 261; Den., ex dem., Murray v. Hoboken Land etc. Co., 18 How., 272. In so far as the pleadings are concerned, the distinction between actions at law and proceedings in chancery have been abolished by the Code, and there is now but one form of action, which pertains to both law and chancery. Under the chancery practice as it existed when the constitution was adopted, and now under the Code, a creditor's bill could be filed, the object of which was the discovery and subjection of property to the pay- ment of a debt or judgment. Proceedings auxiliary to execution, as provided in the statute, were unknown to the common law; and the object to be accomplished thereby, and the manner of doing it, are or may be quite similar to a creditor's bill, and may be well regarded as affording an additional remedy for the accomplishment of the same object. At least it may be said to be a statutory pro- ceeding not in accord with the common law, but more nearly like a proceeding in chancery, and should, under the Code, be classed as a special proceeding, and tried as an ordinary action at law or pro- ceeding in chancery, and the mode of trial mil be determined by assigning the proceeding to whichever class it appropriately belongs. Sisters of Visitation v. Glass, 45 Iowa, 154. The statute contemplates a trial before a court, judge or referee; and such always has been the mode of trial in chancery cases. Witnesses may be examined, and the rights of the parties as fully protected as in any other proceeding in chancery. The defendant, therefore, was not deprived of his liberty or property without due process of law, and therefore the statute is not unconstitutional. There is a material difference between the present statute and that in force when Ex parte Grace was determined. Under the present statute the order for the appearance of the supposed debtor can only be made by the district or circuit court, or a judge thereof, and the examination must be had before one of such courts or judges, or before a referee. Such courts have full and complete jurisdiction of actions at law and proceedings in chancery. They may impanel juries before whom issues may be tried. The judges of said courts have all the powers possessed by judges of courts of general jurisdiction, and the statute under consideration cannot be 636 THE ENFORCEMENT OF JUDGMENTS said to be unconstitutional because the order for the appearance and examination may be made by a judge; nor can it be so said because the ex:unination is liatl l)efore the judge, unless the defend- ant asks to have it before the court; for, if such is his constitutional right, it is clear that such riglit may be waived. The statute in force when Ex parte Cirace wa:? determined provitled that the order for and examination of the debtor could be made by the county court, or judge thereof, and the examination had before such court or judge. Such court wai5 not a court of general jurisdiction. It had no ix)wer to try actions at law or proceechngs in chancer^'. Its jurisdiction was limited and defined by statute. The court in Ex parte Clrace laid some stress on the character and powers of the court before whom the proceeding was had, and the decision of this court in that case may be sustained because the court and judge thereof did not have the power to impanel a jury, and was not vested with the power and jurisdiction to try issues in actions at law or proceedings in chancery, III. The Code conmiissioners recommended that the general assembly should amend the statute under consideration in the Revision, by striking out the words " county court, or judge thereof," and providing that the order for the examination of the debtor should be issued by the district or circuit court, or a judge thereof, and that all the subsequent proceedings should be had before such court or judge. The recommendation was adopted, and the statute re-enacted, and it exists now in other respects in substantially the same form as it did when Ex parte Grace was determined. In addition to the foregoing, the Cotle commis- sioners recommended the enactment of certain provisions which it may be supposed would, in their opinion, clearly make the statute \hA\\ constitutional and eifective. 'i'hese la.st provisions the general assembly failed to adopt, and it is therefore insisted, in substance, that it was the legislative intent that no change should be made to obviate the construction a(loi)t('d by this court. But we think this conclusion siiould not l)e entertained, riie statute i\n it had existed and had been construed, failed to accomplish the nssults intended by its enactment. It had become jjractically obsolete. In view of the change made, and the re-enactment of the Htatiite, it may well be sup|M)sed that the legislative thought was that the constniction which had obtained had l)een obviated. For the reasons stated, the orders and proceedings before the di.s- trict court and ju' proceeding wherein the defendant may be deprived of his liberty. The constitution of the state (article 1, § 9) declares that " no person shall be deprived of life, liberty or property without due process of law." The term '' due process of law " means the ordinar}' judicial proceedings recognized by law, and provided for determining the rights of property and for subjecting the citizen to deprivation of his liberty for \iolation of the law. Boyd v. Ellis, 11 Iowa, 97; Ex parte Grace, 12 lowa^ 208; Stewart v. Board Sup'rs, 30 Id., 9. No man may be deprived of his property or liberty under this constitutional provision except upon a judicial determination obtained in the manner prescribed by law for jjro- ceedings in the courts. There must be an adjudication had in such proceedings in order to deprive the citizen of his liberty or property. The proceedings authorized by the statute quoted above are sum- mary in their nature. They do not accord with the ortlinar\' course pursued in judicial proceedings. The pivotal questions in the case, — namely, whether defendant o^^1led j^roperty, whether he fraudulently disix)sed of it, whether it was under his control so that he could surrender it, and whether he fraudulently put it out of his control, — were not determined in the manner prescribed for the decision of such questions when the rights of property tlepend thereon. They were decided in a summary proceeding, and not in a ca.se wherein the usual course of the law was pursued. The dif- ference between this summary proceeding and an ordinary' action at law or in chancery need not be suggested to the legal mind. They are many, and essential to the just administration of the law. It is true that a commilmcnt for contempt may be made in a summary manner; but it can only be made when based upon a j)rior adjudication of the matter which is the foundation of the con- t«'mpt. I'Vjr a dis. BRUNSDEN V. HUMPHREY 647 cause of action is the same. In this case the injury was occasioned by the negUgent driving of the defendant's servant. Suppose that by the negligent driving of the defendant's servant the van had run against the plaintiff's cab, and had injured him ^vithout doing any damage to the cab: an action would have lain, and any apparent bodily injury which the plaintiff might have sustained would be a cause of action. Suppose that the defendant's servant by his negligent driving had damaged the plaintiff's cab without injuring him personally: under circumstances of that kind the cause of action would be a damage to the plaintiff's property. The o^vner of property has a right to have it kept free from damage. The plaintiff has brought the present action on the ground that he has been injured in his person. He has the right to be unmolested in all his bodily powers. The coUision with the defendant's van did not give rise to only one cause of action: the plaintiff sustained bodily injuries in a distinct right, and he became entitled to sue for a cause of action cUstinct from the cause of action in respect of the damage to his goods : therefore the plaintiff is at liberty to maintain the present action. Different tests have been applied for the pur- pose of ascertaining whether the judgment recovered in one action is a bar to a subsequent action. I do not decide this case on the ground of any test which may be considered apphcable to it; but I may mention one of them; it is whether the same sort of evidence would prove the plaintiff's case in the two actions. Apply that test to the present case. In the action brought in the county court, in order to support the plaintiff's case, it would be necessary to give evidence of the damage done to the plaintiff's vehicle. In the present action it would be necessary to give evidence of the bodily injury occasioned to the plaintiff, and of the sufferings which he has undergone, and for this purpose to call medical witnesses. This one test shews that the causes of action as to the damage done to the plaintiff's cab, and as to the injury occasioned to the plaintiff's person, are distinct. Therefore we are not now called upon to apply a legal maxim, the application of which ought not to be stretched. The plaintiff is entitled to recover the sum of £350, awarded by the jury. Two actions may be brought in re- spect to the same facts, where those facts give rise to two distinct causes of action. Lord Coleridge, C. J. In this case I am wath much regret unable to concur in the judgment of my Brother Bowen, to which I understand the Master of the Rolls to assent. I should have been glad in the face of this difference of opinion to have given 6-i8 EFFECT OF JUDGMENT ON CONTROVERSIES reasoas at length for my inability to agree in the judgment. But the plaintiff very naturally presses for judgment, and I am unable to do more than shortly to ex])ress my dissent. It appears to me that whether the negligence of the servant, or the impact of the vehicle which the servant tlrove, be the technical cause of action, ecjually the cause is one and the same; that the injury done to the plaintiff is injury done to him at one and the same moment by one and the same act in respect of cUfferent rights, i. e. his person and his goods, I do nut in the least deny; but it seems to me a subtlety not warranted by law to hold that a man camiot bring two actions, if he is injured in his arm and in his leg, but can bring two. if besides his arm ami leg being injured his trousers which contain his leg, and his coat-sleeve which contains his arm, have been torn. The consequences of holding this are so serious, and may be very ]irob- ably so oppressive, that I at least must respectfully dissent from a judgment which establishes it. I think that the Court below wa.s right, and that this appeal should be dismissed. Judgment reversed.^ WILBUR, Executor, v. GILMORE. Supreme Judicial Court of Massachusetts. 1838. [Reported 21 Pickering, 250.] Trespass quare clausum. The action was submitted to referees, under a rule of court. They awarded to the plaintiff the sum of S5, as the actual value of wood and timber cut and carried away \)y the defendant, and submitted to the determination of the Court the legal (}uestioas arising in the case. The trespass was committed in the lifetime of the ])laintilT's testator. In the year 1835, the i)laintiff commenced a suit against ' Reilty V. Sicilian Asphalt PavinR Co., 170 N. Y. 40, 62 N. E. 772, accord. But 8CC Doran v. Cohen, 147 Muss. 342, 17 N. E. 047. As to what cau.sfs of action are severable, see 2 Black, Judgnionts, 2(1 cd., 800. 7.'J.'i; 1 Eretmian, Judnnifiits, 4th ed., sees. 238-243; 1 Van Elect, Kdrincr Adjudication, Chap. V. A plaintiff against whom judnmont has hocn ^iven cannot recover on the Hume cause of acti(jn aitlujUKh he; urKcs Rrounds for recovery not ur^ed in the prior action. See Unit(!d States v. California sition, have a judgment which \vi\\ be a bar to another action by submitting the cause to the verchct of a ]\iry, or to the court, if a jur>' be waived. He should not be allowed to experiment with a motion for a noiLsuit, antl obtain the opinion of the court of the plaintiff's ca.se, and, if he fails in his motion, then go to a full trial on the merits, ^\•ithout also allo^\•ing the plaintiff, if he is the losing party on the hearing of the motion, to sue over. If the defendant is not bound and concluded by the decision of the motion, the ])laintiff should not be; and if the rule is ailopted that a nonsuit granted upon the motion of the defendant is a bar to another action, then the correlative rule should be adopted also, that a decision agaiiLst the motion operates as a judgment for the plaintiff. This rule as to the effect of the judgment ^vilI encourage the practice of moving for a nonsuit on the case made by the plain- tiff, and thus often save the tune and expense of a full and needless trial, when the plaintiff has failed to sustain his action, by incom- petency or insufficiency of proof. The question first cfiscussed in the brief of the learned counsel of the respondent, as to the sufficiency of his first defense, ^\^ll not be considered, because not here on this appeal. By the Court. The order of the circuit court overruling the demurrer to the second defense of the respondent's answer is reversed, \\ith costs, and the cause remanded for further i:)roceed- ings according to law.' > See Deneen v. Street Ry. Co., 150 Mich. 235, 113 N. W. 1126, 13 Ann. Caa. 134; Mason v. Kansas City Belt Ry. Co., 22() Mo. 212, 125 S. W. 1128, 28 L. R. A. (s.H.), 914; Coit v. Beard, 33 Barb. (N. Y.), 357; llolhind v. Hatch, 15 Oh. St. 464; Robinson v. Merchants', etc., Co., 10 R. I. 637, 19 Atl. 113; 23 Cyc. 1136. Compare Poyser v. Minors, 7 Q. B. D. 329; Strehlau v. Lumber Co., 152 Wis. 589, 140 N. W. 26. — Eu. HERMAN V. HENRY N. CLARK COMPANY 657 THORESON and Another v. :MINNEAP0LIS HARVESTER WORKS. Supreme Court of Minnesota. 1882. [Reported 29 Minnesota, 341.] This action is brought to recover damages for breach of warranty made upon the sale of a reaping machine by the defendant to the plaintiffs. The answer sets up, as a bar to this action, a judgment of the municipal court of St. Paul, entered by default against the plaintiffs on two of the promissory notes given for the reaper.^ Dickinson, J. . . . The former recovery of a judgment by this defendant against the plaintiffs, on default of the latter upon some of the notes given for the purchase of the machine, constituted no bar to a recovery in this action for breach of the contract of war- ranty. The facts constituting the cause of action in this case were not involved in the former action upon the notes, and could only have been properly presented for adjudication therein by affirma- tive allegations and proof, on the part of the defendants in such action, in the nature of counterclaim or recoupment. Formerly, in such an action, the practice allowed a full recovery of the purchase price, and left the vendee to seek his remedy by a cross-action. Mondel v. Steel, 8 M. & W. 858; Rigge v. Burbidge, 15 M. & W. 598. Now the vendee has his election to plead the breach of contract of warranty in reduction of damages, in an action brought by the vendor for the price, or to bring a cross-action, as was done in this case. Such action is not barred b}^ the former recovery- of the price. Davis v. Hedges, L. R. 6 Q. B. 687; Bodurtha v. Phelon, 13 Gray, 413; McKnight v. Devlin, 52 N. Y. 399; Barker v. Cleve- land, 19 Mich. 230; Benjamin on Sales (3d Ed.), 894, 899.^ . . . BERMAN V. HENRY N. CLARK COMPANY. Supreme Judicial Court of Massachusetts. 1907. [Reported 194 Mass\n)\\ that fact. The-re \v;is nothing adjudged in the former action in the finding that the pluinlilT ha' found a vercUct for the plaintiff. The defendant excepted to the opinion. It appears clearly that the question of fraud was trieti between the parties, in the Marine Court, on one of the notes given in part l>aymcnt of the ves.sel. That t^'ourt had concurrent jurisdiction. The (luestion is, whether the judgUK'ut thus ol)taine(l is not a con- clusive bar to a recovery in this cause ? The law is well settled, that the judgment of a Court of concurrent jurisdiction, tlircctly ujxjn the jK^nt, is, ius a plea in bar, or evidence, conclusive jjetween the same parties, upon the same matter directly in question in another Court. This wjus the rule laid down l)y De Crey, Chief Justice, in delivering judgriicnt in the Duchess of Kingston's cii.se. (11 State Tri. L'Cl. 1 I'lul. Ev. 2Zi. 1 Peters' Uei). 202, ( "ir. Court U. S.; 1 ;irn not uware that it luis been dep.-uted from by our Courts. Tiie gent.-ral jjrincijile does not ap|Mar to be con- GARDNER V. BUCKBEE 665 troverted by the couiLsel for the defendant in error; but it is urged that the judgment in the Marine Court does not affirm any partic- ular fact in issue in this cause, but is general and indefinite; and that, from the language of the record, it cannot be inferred whether the two cases were founded on the same or a different state of facts. It is true, the record merely proves the pleadings, and that judg- ment was rendered for the defendant. Without other proof it would not make out the defence. The record shows that it was competent, on the trial, to establish the fraud of the plaintiff. Whether fraud was made out, and whether that was the point upon which the decision was founded, must necessarily be proved by evidence extrinsic the record. To do so is not mconsistent with the record, nor does it impugn its verity. The jury must have passed on the fraud. It was directly in question. Scott testifies that the unseaworthiness was not disclosed at the time of sale to the defendant. The inquiry, then, was solely directed to the question, was the vessel unseaworthy, and had the plaintiff knowledge of that fact when he sold ? By the finding of the jury, both propositions are affirmed. The judgment became conclusive between these parties, on these points, and is an efifectual bar to the action to recover the residue of the coiLsideration money. It is unnecessary to consider whether the record was admissible in evidence under the general issue, without notice. It was admitted, and no exception was taken on that ground. The effect ascribed to it seems to be the material question in the case. It is in general true, that, under non assumpsit, most matters in discharge of the action, which show that at the time of the commencement of the suit the plaintiff had no cause of action, may be taken advantage of (1 Chit. 472). This rule may appear somewhat arbitrary, as the object of pleading is to apprize the adverse party of the grounds of defence. It is, however, peculiar to this action, although, as Chitty observes, not according with the logical precision which usually prevails in pleadings. The Judge ought to have charged the jury', that if, from the evidence, they were satisfied that the matters in question had been passed upon in the Marine Court, the record was conclusive against the plaintiff's right to recover. I am of opinion that the exceptions are well taken, and that the judgment ought to be reversed. Judgment reversed} » See Hanna v. Read, 102 111. 596; Wright v. Griffey, 147 111. 496, 35 N. E. 732; People's Water Co. v. Pittston, 241 Pa. 208. The judgment is a bar although, by reason of the small amount in dispute, it 666 EFFECT OF JUDGMENT OX CONTROVERSIES HIBSHMAX V. DULLEBAX. Supreme Court of Pennsylvania. 1835. [Reported 4 Watts, 183.] Gibson, C. J.^ The defendants having pleaded a release to the plaintiff's declaration for a legacy' and the plaintiff having replied perfraudem, the defendants rejoin that the release was exhibited by them in the or])han's court, and allowed by that court as a decisive bar to exceptions taken by the plaintiff' to their athninistration ac- count; and the question raised by the demurrer is, whether the validity of the release has passed in rein judicatain. The law of the case, \vith its distinctions, has been compressed into the dimensions of a nutshell, by Chief Justice De Grey, in the Duchess of Kings- ton's case, 11 St. Tr. 261; and though the passage is a trite one, yet as it could not otherwise be so well exjjressed, it is i)roper to re- peat it in his own words. " From the variety of cases in respect to judgments being given in evidence," said the chief justice, " these two distinctions seem to follow as being generally true: the first, that the judgment of a court of concurrent jurisdiction directly upon the point, is, as a plea, a bar — or as evidence, conclusive, between the same parties on the same matter directly in question in another court; secondly, that the judgment of a court of exclusive juris- diction (Urectly upon the ])oint, is in like manner conclusive upon the same matter between the same parties coming incidentallj' in question in another court for a different purpose. But neither the judgment of a cijncurrent or exclusive jurisdiction, is evidence of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment." This brief but comprehensive summary furnishes a rule for every case that any com])lication of circumstances can produce. Xow, did the question of fraud come Ix'fore the orphan's court directly or incidentally '? Xot directly certainly; for that court liad jurisdicticni of it but incidentally, and not to entertain an action whose immediate object should i)e to ascertain the fact. In Blackham's case, 1 Salk. 290, the defend- ant pnjved that the goods, f(jr the conversion of which the action was brought, had belonged to Mrs. Blackham, whose administrator conUl not l*c reviewed l>y u court of appellate jurisdiction. John-soii Coiupany V. Wharton, 1.T2 IJ. S. 'J.j'J, liH L. ed. 42U, 14 S. Ct. (i()S. .\ judKrncnt ljy default in conclusive aa to the matters necojwary to support thf judRuient. ImhI Chance Min. Co. v. Tyler Miu. Co., 157 U. S. 083, 39 L. ed. 8.')9, 15 S. Ct. 733. — Ku. ' Only the o|)ituon of the court is given. — Ed. HIBSHMAN V. DULLEB.^J^ 667 he then was; to rebut which, the plaintiff proved that he was her husband; whereupon the defendant contended that the marriage wa^ conclusively negatived by the grant of administration to him- self, in preference to the plaintiff, her pretended husband. But lord Holt said, that though a matter directly determined by the sentence could not be gainsaid, yet that the principle has regard but to a point directly tried, and not to a matter collaterally inferable from it. The same principle was recognized by the king's bench, in Clues v. Bathurst, Ca. Temp. Hardw. 12. The case of Rex v. Vincent, Stra. 481, in which it was held, that the production of a probate by a prisoner indicted for forging a will, is conclusive for him, has been repeatedly overruled. And the judgment must not only have been direct, but conclusive of the matter adjudged, in the court where it was rendered; for, as is justly remarked by Mr. Starkie, part two, section sixty-five, if it did not decide the point there, it ought not to decide it elsewhere. On all these grounds the decree of the orphan's court was incompetent to affect the plaintiff in his conmion law action. The vaHdity of the release was drawn into contest incidentally; and the point being thus incidentally decided against him, can no more prejudice his title in another court, than can the decision of a surrogate or register prejudice the title of an unsuccessful clahnant of administration to the estate of a decedent. Again, the point was not actually, or at least neces- sarily, decided. The plaintiff's exceptions to the administration account, were also the exceptions of Henry Dulleban's trustees; and whether the release were good or bad, was a question whose decision could not supplant a decision of them on the merits. It did not supplant it; and the gratuitous determination of a point involving the question of fraud, which had no effect there, ought to have no effect here, especially to deprive the plaintiff of a trial by jury. Judgment affirmed. 1 In Misir Raghobardial v. Rajah Sheo Baksh Singh, L. R. 9 Indian Ap- peals 197, p. 203 the court says (quoting from a prior decision) that " in order to make the decision of one Court final and conclusive in another Court, it must be a decision of a Court which would have had jurisdiction over the matter in the subsequent suit m which the decision is given in evidence as conclusive." See Duchess of Ivingston's Case, 10 How. St. Tr. 355, 537, 3 Smith, Leading Cases, 9th Am. ed., 1998; 1 Van Fleet, Former Adjudication, sees. 2-5.— Ed. 668 EFFECT OF JUDGMENT ON CONTROVERSIES DOYLE V. GORE. Supreme Court of Montana. 1895. [Reported 15 Montana, 212.] Pemberton, C. J. This is an action by plaintiff to recover damages claimed to have been sustained by him on accomit of an assault and batten' alleged to have been committed by defendant upon plaintiff. The case was tried witii a jnn,-, and a verdict rendered in favor of plaintiff for five hundretl dollars. Judgment was entered thereon for said amount. From this judgment, and an order of the court denying a new trial, the defendant appeals. It appears that, after the commission of the alleged assault and battery, the defendant was arrested therefor, and tried and con- victed before a justice of the peace. In the trial of this case for damages resulting from said assault and battery, the court, over the objection of defendant, permitted the plaintiff to introduce in evidence the transcript of the justice's docket, who tried the criminal case against the defendant. This is assigned as error. In 1 Greenleaf on Evidence, fifteenth edition, section 537, it is said: " Upon the foregoing principles, it is obvious that, as a general rule, a verdict and judgment in a criminal case, though admissible to establish the fact of the mere ren(htion of the judg- ment, cannot be given in evidence in a civil action, to establish the facts on which it was renderetl." In section .538 the same author, speaking of a case exactly like the one at bar, says: " But if he were convicted of the offense, and then is sued in trespass for the assault, the record in the fonner ca.se would not be in evidence to establish the fact of the assault: for, as to matters involved in the issue, it Ls res inter alios ucla." (And see authorities cited.) The defendant may have been convicted upon perjured or in- comiK'tent testimony, or by collasion, or his conviction may have been the result of prejudice on the part of the justice or the jury. In this c;us(; the; introduction of this evidence may have been very prejudicial to the defendant. Whetluir or not the defendant com- mitted the jus-sault and battery alleged was an issue in the c!i.se. liy the ju.stice's transcript the plaintiff claims that the assault and battery was shown, hjuving the; jury to determnie ouIn tin- aniDunt of (himuge plaintiff had sustaine«l by reason thereot. The court gave no instruction as to the purpose of this evidence. Nor does RIVERSIDE LAND & IRRIGATING COMPANY V. JENSEN 669 the record disclose any particular purpose for which it was admitted. But accepting plaintiff's statement in his brief as to the purpose of its introduction, we are of opinion that it was error to admit it in this case. It certainly did prove, or tend to prove, the facts upon which judgment of the justice was rendered. Such being the intended purpose and effect of the evidence, its admission was error. The judgment is reversed and cause remanded for a new trial. Reversed.^ De Witt, J., and Hunt, J., concur. RIVERSIDE LAND & IRRIGATING COMPANY v, JENSEN, Executrix, et al. Supreme Court of California. 1895. [Reported 108 California, 146.] The defendant in the present action was executrix of the last will of Cornelius Jensen, deceased, and the devisee thereunder of the land the title to which was sought to be quieted. The further facts are stated in the opinion of the court. Van Fleet, J.^ Action to quiet title. Plaintiff had judgment, from which and an order denying her motion for a new trial defendant appeals. The objection of defendant to the introduction in evidence of the judgment-roll in the action of Riverside Land & Irrigating Com- pany V. Cornelius Jensen was properly overruled. That was an action brought by the plaintiff here against the testator and pred- ecessor in interest of this defendant to quiet plaintiff's title to certain lands, uicluding the premises in controversy in this action, and in which final judgment was entered quieting plaintiff's title to the land in suit. It was not required of plaintiff to plead said judgment in order to be entitled to prove it. The complaint was in the usual form and was sufficient (Rough v. Simmons, 65 Cal. 227; Heeser v. Miller, 77 Cal. 192; Castro v. Barry, 79 Cal. 447); and ^ Compare Brown v. Swineford, 44 Wis. 282, 28 Am. Rep. 582; Luther v. Shaw, (Wis., 1914) 147 N. W. 18. The judgment is a bar as to those who, though not parties to the record, are nevertheless real parties. Souffront v. La Compagme des Sucreries de Porto Rico, 217 U. S. 475, 54 L. ed. S4C, 30 S. Ct. 608; Weld v. Clarke, 209 Mass. 9, 95 N. E. 651. — Ed. ^ A part of the opinion is omitted. — Ed. 670 EFFECT OF JVDGMEXT ON CONTROVERSIES such an allegation would have been improper, as it is never neces- sary in such an action to pleatl deraignment of title. That is matter of evidence purely. While as a general rule it may be necessar>' to plead estoppel by former judgment, that rule does not apply when, as under our system, no opportmiit}' is afforded the plaintiff to plead it. It had no proper place in the complaint, but plaintiff could not be precluded from the benefit of it as matter of evidence on that ground. He was entitled to give it in evidence with the same effect as if given an opportunity to plead it specially. Clink V. Thurston, 47 Cal. 27; Wi.xson v. Devine, 67 Cal. 345. . . . Judgment and order affirmed. ILvRRisON, J., and Garoutte, J., concurred. DULL I'. BLACKMAN. Supreme Court of the L'nited States. 1898. [Reported 169 United Slates, 243.] The facts in this case are as follows: On June 25, 1889, plaintiff in error, Daniel Dull, being the owner of the tract of land in con- troversy, conveyed the same by warranty deed executed l)y himself and wife to John E. Blackman. Blackman, on August 2, LSSy, made a deed of the same land to George F. Wright as security for moneys to be advanced by W^right. On the 2yth of February, 1892, Blackman commenced this suit in the District Court of Pottawattamie County, Iowa, to compel a reconveyance by Wright on the ground of his failure to advance any money. Prior thereto, and on January 30, 1SU2, Blackman had executed a deed of the land to Edward Phelan, which conveyance was at first conditional but by agreement signed Ijy the parties on September 15, 1892, wjus made alxsolute. On tlie 17th of Septeml)er, 1892, Phelan filed his petition of intervention, setting forth his rights in the matter under the deed (jf .January 30 and the agreement of September 15, and al.so making plaintiffs in error and others defend- ants, alleging that they claimed certain interests in the property, and i)rayirig a decree (juieting his title as against all. On January 24, 1S93, plaintiff's coun.sel witlidrew his api)earance for Blackman, and, uiK>n his application, was allowed to i)rosecute the action in the name of Blackman for and in Ix'half of IMiclan, the intervenor. (.>n February 2, 1893, the ])laintiffs in errur appeared in the suit and filed an answer denying all the allegations in plaintiff's petition and DULL V. BLACK\L\N 671 in the petition of intervention. On the 15th of that month they filed an amended answer and a cross petition, in which they set up that Blackman had obtained his deed from them by certain false representations, and that a suit was pending in the Supreme Court of the State of New York, in which Daniel Dull was plaintiff, and Blackman, Wright, Phelan and others were defendants, in which the same issues were made and the same relief sought as in the case at bar. On May 29 they filed an amendment to their answer and cross petition setting forth that the case pending in the Supreme Court of New York had gone to decree, and attached a copy of that decree. The suit in the Supreme Court of the State of New York was commenced on the 3d of November, 1892. Blackman was served personally within the limits of that State, but the other defendants therein, Wright, Phelan and Duffie their counsel, were served only by delivering to them in Omaha, Ne- braska, a copy of the complaint and summons. No appearance was made by them. Notwithstanding which the decree was entered against them as against Blackman, and was a decree establishing the title of Daniel Dull , setting aside the deed made by him and his wife to Blackman, and enjoining the several defend- ants from further prosecuting the action in the Iowa court. After certain other pleadings and amendments thereto had been made the case in the District Court of Pottawattamie County, Iowa, came on for hearing, and upon the testimony that court entered a decree quieting Phelan's title to the land as against any and all other parties to the suit, subject, however, to certain mortgage interests which were recognized and protected, but which are not in any way pertinent to this controversy between Dull and wife and the defendants in error. On appeal to the Supreme Court of the State such decree was, on January 21, 1896, affirmed, from which judgment of affirmance plaintiffs in error have brought the case here. Brewer, J.^ The contention of the plaintiffs in error, and in it is the only question of a Federal nature presented by the record, is that the courts in Iowa did not give that full faith and credit to the decree rendered in the Supreme Court of the State of New York to which under the Constitution of the United States it was entitled. From the foregoing statement of facts it appears clearly that although the suit in the Iowa court was originally commenced by Blackman, and though his name was, under the practice prevailing in Iowa, never dropped from the title of the case, it was by reason » A part of the opinion is omitted. — Ed. 672 EFFECT OF JUDGMENT OX CONTROVERSIES of the intervention of Phelan and the orders of the court simply prosecuted in his name for the benefit of Phelan, the intervenor; that this intervention of Phelan, and his petition in support thereof, making the plaintifYs in error and others defendants thereto, was filed on the 17th of September, 1S92, nearly two months before the commencement of the suit in New York. It also appears that while Blackman. Phelan, Wright and others were named as parties defendant to the suit in New York, Blackman was the onlj' one served withui the territorial jurisdiction, and the only one appear- ing in that court. The other defendants were attempted to be brought in by ser\'ice of summons in the State of Nebraska, and never entered any appearance in the suit. It is true the decree in the Supreme Court of the State of New York was entered before the trial of this case in the District Court of Iowa, and the record of the proceedings in the New York court was in evidence at the trial in the Iowa court. It further appears from the findings of fact made by the trial court in Iowa, and sustained by the Supreme Court of that State, that the entire right and title had passed from Blackman to Phelan in September, 1892, nearly two months before the commencement of the suit in New York. Upon these facts we remark that as the land, the subject-matter of this controversy, was situate in Iowa, litigation in respect to its title belonged properly to the courts wdthin that State, EUenwood v. Marietta Chair Co., 158 U. S. 105, 107, although if all the parties interested in the land were brought personally before a court of another State, its decree would l:)e conclusive upon them and thus in effect determine the title. The suit in New York was one purely in personam. Any decree therein bound simply the parties before the court and their privies, and tlid not operate directly upon the lands. . . . We remark again that while a judgment or decree binds not merely the party or parties subject to the jurisdiction of the court but also those in privity with them, yet that rule does not avail the plaintiffs in error, for Piiclan acfiuired his rights i)rior to the institution of the suit in New York and was therefore not privy to that judgment. " It is well understood, though not usually stated in fX|)ress terms in works upon the subject, that no one is i)rivy to a judgment whow; succession to the rights of property thereby affected, oc- curred previously to the institution of the suit. A ti'iiant in pos- 8CH.sion prior to the commencement of an action of ejectment camiot therefore be lawfully disi>ossessed by the judgment unless BRIGHAM V. FAYERWEATHKR 673 made a party to the suit. ... No grantee can be bound by any judgment in an action commenced against his grantor subsequent to the grant, otherwise a man having no interest in property could defeat the estate of the true o^\^ler. The foreclosure of a mort- gage, or of any other lien, is wholly inoperative upon the rights of any person not a party to the suit, whether such person is a grantee, judgment creditor, attachment creditor, or other lienholder." Freeman on Judgments, (1st ed.,) § 162. As Phelan was not brought within the jurisdiction of the New York court, and as the suit in that court was instituted nearly two months after he had acquired full title to the real estate, the decree of that court did not bind him as a party, nor bind him as in privity ^vith Blackman, his grantor. The Supreme Court of Iowa did not err in so holding. The decree is Affirmed.^ BRIGHAM V. FAYERWEATHER & another. Supreme Judicial Court of Massachusetts. 1886. [Reported 140 Massachicselts, 411.] Bill in equity, filed May 21, 1884, to have declared void a mortgage deed executed by Azubah Brigham, the plaintiff's tes- tator, on the ground that said Azubah Brigham at the date of the execution of said deed was not of sufficient mental capacity to execute the deed. The bill alleged, and the answer admitted, that the plaintiff derived his title from the will of Azubah Brigham. The case was heard before Aldrich, J., who allowed a bill of excep- tions, in substance as follows: The following issue was submitted to the jury: Was Azubah Brigham of sufficient mental capacity, at the time the mortgage deed referred to in the bill was executed, to transact the business of executing such deed ? 1 Doctor Jack Pot Min. Co. v. Marsh, 216 Fed. 261, accord. Purchasers Pendente Lite. In the absence of statute, a purchaser of property pending suijt in which the title thereto is involved takes subject to the judgment or decree which may be rendered in the suit against the vendor. See Sprague v. Stevens, (R. I., 1914) 91 Atl. 43, and cases cited; 2 Black, Judgments, 2d ed., sec. 550; 2 Van Fleet, Former Adjudication, sees. 539- 550. Statutes now generally provide for filing a notice in case of actions brought to recover a judgment affecting real property. See N. Y. C. C. P., sec. 1670; Jorgenson v. Minneapolis & St. L. Ry. Co., 25 Minn. 206. — Ed. 674 EFFECT OF JUDGMENT ON CONTROVERSIES The mortgage deed was executed on June 15, 1882. The mort- gagor died on December 6, 1883, leaving a last will, executed on October 11, 1882, by the provisions of which the plaintiff was made residuary devisee and legatee, and he was also one of the executors of the will. The defendants offered evidence tending to show that the mental capacity of the mortgagor was no less on June 15, 1882, than on October 11. 1882. The defendants offered in evidence the petition of the plaintiff for the probate of said will in the Probate Court for the county of Worcester; and as evidence of the mental soundness and capacity of the mortgagor at the date of the will, four months after the execution of the mortgage, they offered the adjudication of the Probate Court admitting the will to probate. The evidence was excluded, not on the ground that the date of the execution of the will was too remote from the date of the deed, but on the ground that the adjudication of the Probate Court was not admissible for the purpose for which it was offered, on the issue before the jury; and the defendants excepted. Dr. William Curtis, one of the executors of the will, was a witness for the plaintiff. He testified that he was the family physician of Mrs. Brigham, the mortgagor, to the time of her death. He testified to various facts, and to his opinion that she was disqualified from doing such business as the execution of said mortgage deed at the time she signed it, by reason of her mental unsoundness. The first-named defendant, after the appointment of Curtis as executor, in Ajjril or May, 1884, had a talk with him about the said mort- gage. The defendants offered to show by the evidence of said defendant, that, in said talk in May or April, 1884, Curtis did not state or contend, and never had stated or contended to him, prior to the bringing of this suit, that the mortgagor was incompetent to execute this mortgage when it was made. This evidence was excluded, and tlu; defendants excepted. The jury answered the (juestion submitted to tlicni in tiie negative; and the defendants alleged exceptions. HoL.MEs, J. A judgmcait in rem is an act of the sovereign power; and, as such, its effects cannot be disputed, at least within the jurisdiction. If a competent court declares a vessel forfeited, or orders it sold free of all claims, or divorces a couple, or estab- li.shes a will under statutes like our l*ub. Sts. c. 127, § 7, a |)ara- mount title is ptiKsed, t\ut c(ju[)le is divorced, tlic will is csLablished, as against all the workl, whether parties or not, because the BRIGHAM V. FAYERWEATHER 675 sovereign has said that it shall be so. Hughes v. Cornelius, 2 Show. 232; S. C. T. Raym. 473; Skin. 59; Carth. 32. Noell v. Wells, 1 Lev. 235. Scott v. Shearman, 2 W. Bl. 977. The Helena, 4 Rob. (Adm.) 3. Leonard v. Leonard, 14 Pick. 280. McClurg v. Terry, 6 C. E. Green, 225. But the same is true when the judg- ment is that A recover a debt of B. The public force is pledged to collect the debt from B, and no one within the jurisdiction can oppose it. And it does not follow in the former case any more than in the latter, nor is it true, that the judgment, because con- clusive on all the world in what we may call its legislative effect, is equally conclusive upon all as an adjudication of the facts upon which it is grounded. On the contrary, those judgments, such as sentences of prize courts, to which the greatest effect has been given in collateral proceedings, are said to be conclusive evidence of the facts upon which they proceed only against parties who were entitled to be heard before they were rendered. The Mary, 9 Cranch, 126, 146. Salem v. Eastern Railroad, 98 Mass. 431, 449. Baxter v. New England Ins. Co., 6 Mass. 277, 286. Wliitney v. Walsh, 1 Cush. 29. We may lay on one side, then, any argument based on the mis- leading expression that all the world are parties to a proceeding in rem. This does not mean that all the world are entitled to be heard, and as strangers in interest are not entitled to be heard, there is no reason why they should be bound by the findings of fact, although bound to admit the title or status which the judg- ment establishes. Still, the cases last cited show that some judgments in rem are conclusive evidence of the facts adjudicated, in favor of a stranger, as against a party. And if the analog>' is to be applied to all judg- ments which create or change a status or a title, it would apply here. For the plaintiff was a party to the decree establishing the will, and that decree necessarily proceeded on the ground that the testator possessed sufficient capacity to make the \\\\\. But these cases cannot be taken to lay do\vn a general principle. The reasons given for the decisions are not that the conclusion follows as a necessary effect of judgments in rem merely as such, but are special reasons of convenience or construction. In The Mary, 9 Cranch, 126, 145, the doctrine as to sentences of prize courts is said to rest on " the propriety of leaving the cognizance of prize questions exclusively to courts of prize jurisdiction; the very great inconvenience, amounting nearly to an impossibility, of fully investigating such cases in a court of common law; and the 676 EFFECT OF JUDGMENT ON CONTROVERSIES impropriety of revising the decisions of the maritime courts of other nations, whose jurisdiction is coordinate throughout the world." In Baxter v. New Enghind Ins. Co., 6 Mass. 277, 300, and Robinson v. Jones, 8 Mass. 536, 540, the effect of a sentence in a subsequent action on a policy of insurance is referred to the settled construction of mercantile contracts. In Lothian v. Henderson, 3 B. *i: P. 499, 545, the doctrine seems to be thought to stand on practice and authority, rather than on principle. See Castrique v. Imrie, L. R. 4 H. L. 414, 434. The general principle is stated with substantial correctness by Sir James F. Stephen, in his work on Evidence, art. 42: " State- ments contained in judgments as to the facts upon which the judg- ment is based are deemed to be irrelevant as between strangers, or as between a party, or privy, and a stranger, except in the case of judgments of courts of admiralty condemning a ship as prize," and some other judgments of a kindred nature. Apart from precedent, there seems to be no satisfactory ground for treating the probate of a will as evidence of the testator's mental capacity on a collateral issue. For except in the com- paratively small number of cases where the probate of the will is opposed, the investigation of the fact is necessarily only formal. Still less do we see why, if the probate is not evidence against a party who had no right to be heard, he should hold the e.xecutor bound by it when he himself is free. Ordinarily, estoppels by judgment are mutual. The fact can be tried in the Sui^erior Court lis well as in the Probate Court, and was actually tried in this very case. Thus the chief reason offered for the effect of prize sentences is removed. (Jne or two cases cited by the defendant may need a word of explanation. It has been held, in a suit by an administrator, that letters of administration are con(.'lusive proof of the intestate's death, unless the defendant i)leads in abatement. Newman v. Jenkins, 10 Pick. 515. And elsewhere it has been decided, in a suit where the i)lainti(T's title was derived from an ailniinistrator's sale, that the letters are prima Jdcic evidence of the death. JelTers V. Radcliff, 10 N. H. 2*12. Tisdale v. Connecticut Ins. Co., 26 Iowa, 170; S. C. 28 Iowa, 12. Hut in these cases the letters are not introduced as evidence on a c(jllateral issue. They are the neces- sary foundation of the plaintiff's title. They arc not put in to prove the death, but tin; death is denied in order to invalidate the letters. The fart (jf deatii is innnaterial, except as bearing on the jurisdicticjn (jf the court to issue them. It may well be held that, BRIGHAM V. FAYERWEATHER 677 where the question comes up in this way, such a decree will be presumed, prima facie, to have been within the jurisdiction of the court that made it, so far as this fact is concerned, althougli it has been held otherwise in England. Moons v. De Bernales, 1 Russ. 301, 307. See Thompson v. Donaldson, 3 Esp. 63. But it is entirely consistent ^vith the New Hampshire and Iowa decisions to hold that, in collateral proceedings, the issue of letters of admin- istration is not even -prima Jade evidence of death. Carroll v. Carroll, 60 N. Y. 121. Mutual Benefit Ins. Co. v. Tisdale, 91 U. S. 238. See Blackham's ease, 1 Salk. 290; French v. French, Dick. 268; Spencer v. Williams, L. R. 2 P. & D. 230. These cases very strongly sustain the conclusion which we have reached. In the case at bar, the plaintiff's title under the will was admitted by the answer, and if it had not been, the testator's sanity or insanity did not affect it, because it did not affect the jurisdiction of the court. If the defendant as well as the plaintiff had been a party to the probate of the Avill, a different question would arise. See Barrs v. Jackson, 1 Phil. 582, reversing S. C. 1 Y. & C. Ch. 585; Doglioni v. Crispin, L. R. 1 H. L. 301, 311, 314; Burlen v. Shannon, 99 Mass. 200, 203; Morse v. Elms, 131 Mass. 151, 152. But the defendant was not a party in the sense that he was entitled to be heard, or to take an appeal, and unless he had that right, he was not concluded by the adjudication of facts, as has been shown. It is suggested that the plaintiff's petition presenting the will for probate was competent as an admission. But we do not thuik that any question except the effect of the adjudication appears by the exceptions to have been presented to the court, or to have been ruled upon by it, even if the petition would have been admissible on that ground, which we do not intimate. See Page v. Page, 15 Pick. 368. The bill of exceptions does not show that the testimony of Fayer- weather was improperly rejected. The mere fact that Dr. Curtis had had a talk about the mortgage does not show that the talk was of such a nature as to call for a denial of the mortgagor's capacity, and therefore the fact that he did not deny it would not tend to contradict or impeach his testimony at the trial that the mortgagor was incompetent. Perry v. Breed, 117 ]Mass. 155, 165. Exceptions overruled} 1 See BaUantyne v. Mackinnon, [1896] 2 Q. B. 455. — Ed. LAW LIURARY UMVERSTTY or r\r,ii.x)RNiA Las AJS'GELES UC SOUTHERN REGIONAL LIBRARY FACI^^ AA 000 857 399 o