THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW C. L BENSEL LAW ..PR 21 DOUGLAS 3LDG. MU 44' uEg A TREATISE ON THE LAW OF WAIVER BY RENZO D. BOWERS OF THE BOSWELL NEW MEXICO BAB PORTLAND, OREGON: GEO. A. BATESON & CO., INC., 1914 Copyright 1914 By Renzo D. Bowers. T TO MY WIFE FOE LOVING ASSISTANCE AND TO MY MOTHEE FOE KIND EN- OOUEAOEMENT, AND THUS TO THE TWO MOST DEAE IN ALL THE WOELD, AS A MEMENTO OF APPEECIATION, THIS WOEK IS AFFECTIONATELY INSCRIBED B. D. B. G6v65G CHAPTER HEADINGS LIST OF CHAPTER HEADINGS. Chapter 1. Preliminary. Chapter 2. Contracts. Chapter 3. Bills and Notes. Chapter 4. Mortgages. Chapter 5. Liens. Chapter 6. Statute of Frauds. Chapter 7. Exemptions. Chapter 8. Privileged Communications. Chapter 9. Redemption. Chapter 10. Statute of Limitations. Chapter 11. Corporations. Chapter 12. Insurance. Chapter 13. Torts. Chapter 14. Pleading. Chapter 15. Criminal Practice. Chapter 16. Civil Practice. TABLE OF CONTENTS CHAPTER 1. PRELIMINARY: iSec. 1. DEFINITION. Sec. &. WHO MAY WAIVE RIGHTS: A. Agents. B. Attorneys. C. Infants. CONTRACTS: Sec. 12. WAIVER OiF THE MANNER OF PERFORM- ANCE: A. By Acceptance After Breach. B. By (Proceeding Under the Contract After a Breach. C. By Preventing the Other Party From Per- forming. D. Condition for Payment for Goods on De- livery. Sec. 36. WAIVER OF TIME FIXEID FOR IPERiFOIRM- ANOE 1 : A. Performance Prevented By the Promissee. B. Time Held Not Waived. Sec. 46. WAIVER OiF TENDER, OF PERFORMANCE: A. General Rules. B. Acts Held Not A Waiver. Sec. 62. WAIVER OF FORFEITURES : A. General Rules. B. In Deeds and Land Contracts. C. In Leases. Sec. 6i5. WAIVER OF THE RIGHT TO .RESCIND. CHAPTER 3. BILLS AND NOTES: Sec. 72. IN GENERAL. Sec. 74. WAIVER CONTAINED IN THE INSTRUMENT: A. On Face of Instrument. DB. Waiver in Indorsement. 8 THE LAW OF WAIVES Bee. 76. ORAL WAIVER. A. Concurrently With Indorsement. B. Subsequently To Indorsement, But Prior To Maturity. C. At Maturity. D. After Maturity. Bee. 81. WAIVERS AFTER DEFAULT: A. By Promise to Pay (1) Sufficiency of promise. (2) Conditional promise. (3) Insufficient promises. B. Knowledge Essential To Promise (1) Whether promise presumes knowl- edge. (2) Knowledge of legal effect of hold- er's default. C. Payment or Part Payment As Waiver. D. Receipt By Indorser Of Money, Property Or Other Security As Waiver. E. Waiver By Conduct. Sec. 105. CONSIDERATION FOR WAIVER: Sec. 109. WHETHER WAIVER IS WITHIN STATUTE OF FRAUDS. Sec. 110. EXTENT OF WAIVER: CHAPTER 4. MORTGAGES: Sec. 112. CHATTEL MORTGAGES: A. Waiver of The Lien By Attachment. B. By Execution. C. By Other Acts of The Mortgagee. Bee. 118. RIEAL ESTATE MORTG AGES : A. Waiver Of The Lien (1) By suit or judgment on note. (2) Levy of execution on mortgaged premises to satisfy mortgage debt. (3) Taking other security; attaching mortgaged property; etc. (4) Waiver of priority. B. Waiver In Foreclosures (1) Breach of mortgage conditions (a) Non-payment of interest. TABLE OF CONTENTS 9 (b) Non-payment of taxes, in- surance or installments of principal. (2) Waiver of entry to foreclose. (8) Waiver of foreclosure sale. (4) Waiver of right to set aside sale (a) By laches or delay. (fc) Effect of redemption. (c) Other conduct constituting waiver. CHAPTER 5. LIENS: Sec. 148. PROMISSORY LIENS: A. Carriers. B. Inn-Keepers. C. Liverymen and Agisters. Sec. 155. ATTORNEY'S LIENS. Sec. 157. MECHANIC'S LIENS. A. In General. B. By Taking Debtor's Note. C. By Drawing Draft. D. By Taking Mortgage. E. By Taking Collateral Security. F. By Personal Judgment, Attachment, Or Ex- ecution. G. Miscellaneous Waivers. Sec. 172. VENDOR'S LIENS. CHAPTER 6. STATUTE OF FRAUDS: Sec. 1715. IN GENERAL. Sec. 177. HOW WAIV7DR OF THE STATUTE MAY OC- CUiR. Sec. 181. EFFEICT OF WAIVING THE STATUTE. CHAPTER 7. EXEMPTIONS: Sec. 182. WAflVETl IN GENERAL. Sec. 183. BY CONCUiRREOSTT AGREEMENT. Sec. 18'5. BY SUBSEQUENT CONDUCT. Sec. 187. 'HOMESTEAD 10 THE LAW OF WAIVEB CHAPTER 8. PRIVSLEXJiED OOM'MUNIOATIONS : Sec. 190. IN GHE2N1EJRA1L. Sec. 191. ATTORNEY AND OLTEiNT. See. 186. PHYSICIAN AND PATIENT. A. Who May Waive Privilege. B. What Amounts To Waiver. Sec. 198. HUSBAND AND WIFR. CHAPTER 9. REDEMPTION: Bee. 199. UNDER MORTGAGES: A. By Concurrent Agreement (1) In mortgage. (2) By separate instrument. B. By Subsequent Agreement. C. By Laches. D. By Other Conduct. CHAPTER 10. STATUTE OF LIMITATIONS: Sec. 21i5. e actually produced, and it must be a sufficient amount to fully discharge the indebted- ness. If more than enough is tendered, it must be with the intention that the creditor shall keep all, and it must not be in such condition that the credi- tor is required to make change. If a place be specified in the agreement, tender must be made there; and if no place be specified, it is the duty of the debtor to find the creditor and make tender to him, as no duty rests upon the creditor to make demand upon the debtor. The party making a tender may couple with it any condition provided for by law, 'but none other, and if he attempts to do so the tender will be insufficient. Sec. 47. But the foregoing duties imposed "by law upon a debtor may be waived or rendered un- necessary by some act of the creditor. And in waiv- ing a tender, a party comes more nearly to doing so without intending it than in waiving any other priv- ilege or right which the law gives him. Like the waiver of any other right, that of tender may be by express avowal or by conduct leading the debtor to believe that it would not be insisted upon. And it is often waived by implication, following the maxim, Expressio unius est exclusio alterius; as if you say to me that you have come to pay me what you owe 56 THE LAW OF WAIVER me, and I reply that it will be unnecessary to show any money as I am not bound by the contract ; I will not later be heard to say that formalities of the ten- der had not been complied with. This is under the principle of the law of waiver hereinbefore dis- cussed, that I have, in a legal sense, actually prevent- ed you from performing your part of the contract and have, therefore, waived or dispensed with such performance. Likewise, refusal to accept a sum be- cause insufficient in amount waives any formalities in the tender 28 . If at the time of tender, objection is made upon one ground, any other objection the party might have made will be considered as waived 24 . A refusal to accept a check for the only reason that it is insufficient in amount is a waiver of the objection that the offer of payment was not in legal tender 25 . Or, if the party fail to object that the tender was not made in time, such objection will be held waived 26 . And, while a valid tender can be made only in legalized currency, this requirement may be waived, and it is waived if objection be placed solely on other grounds 27 . A tender of a cer- 23. Whelan v. Reilley, 61 Mo. 565. Jennings v. Mendenhall, 7 Oh. St. 257. Haskell v. Brewer, 11 Me. 258. 24. Moynahan v. Moore, 9 Mich. 9; 77 A. D. 468. Carman v. Pultz, 21 N. Y. 547. Bradshaw v. Davis, 12 Tex. 336. Nelson v. Robson, 17 Minn. 284. Ricker v. Blanchard, 45 N. H. 39. Keller v. Fisher, 7 Ind. 718. 25. Larson v. Breene, 12 Colo. 480; 21 Pac. 498. 26. Adams v. Helms, 55 Mb. 468. 27. Ward v. Smith, 7 Wall. 447 (U. S.). Williams v. Rorer, 7 Mo. 556. Fosdick v. Van Husom, 21 Mich. 567. Wheeler v. Knaggs, 8 Oh. 169. Lowell v. Henry, 6 Ala. 226. CONTRACTS 57 tain sum was made by check; the payee refused to receive it on the sole ground that the contract had been ended; he thereby precluded himself from ob- jecting to the medium of tender 28 . Sec. 48. If no objection be made as to the terms of an instrument when presented defects therein can- not afterward be insisted upon 29 . In fact, if there he any language or conduct indicating that payment or performance will be refused if offered, such offer need not be made, for the law never requires one to do a vain thing 30 . So, the refusal of an offer of pay- ment dispenses with any further tender 31 . And where a payee declares that he will not receive mon- ey if produced, or uses equivalent language, the pro- duction of the money is thereby waived 32 . In a con- tract for the sale of a boat it was held unnecessary for a party to tender a conveyance stipulated for when the buyer had signified his unwillingness to accept it 33 . Where the debtor holds the money in his hands and tells the creditor that he has come to pay, 'but the latter replies that it would be altogether unnecessary to produce the money, there need be no 28. McGrath v. Gegner, 79 Md. 331 ; 26 Atl. 502 ; 39 A. S. R. 415. 29. Gilbert v. Mosher, 11 la. 498. 30. Sonia Co. v. Red River, 106 La. 42; 30 So. 303 ; 87 A. S. R. 293. Chinn v. Bretcher, 42 Kans. 316 ; 22 Pac. 426. 31. O'Conor v. Morse, 112 Cal. 31; 44 Pac. 305; 33 A. S. R. 155. McCally v. Otey, 99 Ala. 584; 12 So. 406; 42 A. S. R. 87. 32. Berthold v. Reyburn, 61 Mo. 595. Stephenson v. Kilpatrick, 166 Mo. 262 ; 65 S. W. 773. Guthman v. Kearn, 8 Neb. 507. Ashburn v. Poulter, 35 Conn. 553. Berry v. Nail, 54 Ala. 451. Hall v. Ins. Co., 67 Conn. 105; 17 Atl. 356. Rogers v. Tindall, 99 Tenn. 356 ; 42 S. W. 86. Hazard v. Loring, 10 Gush. 267. 33. Lynch v. Postlethwaite, 7 Martin (La.) 69; 12 A. D. 495. 58 THE LAW OF WAIVER further formalities of the offer to pay 34 . A release from damages for personal injuries was alleged to have been obtained by fraud; no objection, by plead- ing or otherwise, was made to plaintiff's case for his failure to tender a return of the fruits of the release, and the validity of the release was insisted upon ; de- fendant was held to have waived the necessity of a tender 35 . Sec. 49. The foregoing cases involved a waiver at the time of tender. But it is not absolutely neces- sary that the waiver should occur at the time of ten- der in order for it to be valid. It may be before or after as well as at the time of tender ; as where a creditor announces in advance that a tender will not be accepted, it is thereby waived 36 . If one party to a contract notifies the other that he will no longer be bound by it, he waives the making of a tender of any sum due him under the contract 37 . In a suit for specific performance, where the defendant insists that he is not bound, no tender of the purchase price need be made before bringing suit 38 . Sec. 50. And, again, some act of the creditor may prevent an actual tender ; as in a case where a party should have delivered a deed on a certain day, 34. Westmoreland v. De Witt, 130 Pa. St. 235; 18 Atl. 724; 5 L. R. A. 731. Thome v. Mosher, 20 N. J. Eq. 257. 35. Girard v. St. Louis Car Co., 123 Mo. 358; 27 S. W. 648; 45 A. S. R. 556; 25 L. R. A. 514. 36. Duffy v. Patton, 74 Me. 396. Hampton v. Speckenagle, 1 Ad. 704 (Penn.). Dorsey v. Barbee, 12 A. D. 296 (Ky.). Hoyt v. Sprague, 61 Barb. 497. 37. McPherson v. Fargo, 10 S. Dak. 611; 74 N. W. 1057; 66 A. S. R. 723. Potter v. Taggart, 54 Wis. 401; 11 N. W. 678. 38. Wright v. Young, 6 Wis. 127; 70 A. D. 453. CONTRACTS 59 and the party to have received it willfully evaded him so that it could not be tendered, the facts were held equivalent to a tender 39 . And where one party is at the proper place at the proper time to make an offer of performance and the other party inten- tionally evades tender, it is thereby waived 40 . And a waiver also occurs where the creditor refuses to stay in the room long enough for the money to be counted out to him 41 . And a waiver may occur after the time when the tender should have -been made. Thus, a tender of cattle under a contract within the specified time is waived by an acceptance of them afterward 42 . B. ACTS HEO) NOT A WAIVER: Sec. 51. But the bare refusal to receive the amount due under the contract, coupled with a demand for a larger amount, have been held not to amount to a waiver of a tender of proper performance 43 . And where one refers another offering him a tender to his at- torney, but does not refuse to accept and makes no objection, and does not intimate that the tender would not be required, such facts were held not to amount to a waiver 44 . A refusal of a tender, but accompanied by a demand for the production of the money does not excuse a tender 45 . And a tender is not waived where there is merely an uncommuni- 39. Borden v. Borden, 6 Ma.ss. 67; 4 A. D. 32. 40. Noyes v. Clark, 7 Paige 179 ; 32 A. D. 620. Sharp v. Todd, 38 N. J. Eq. 329. Southworth v. Smith, 7 Cush. 391. Gilmore v. Holt, 4 Pick. 258. 41. Schayer v. Ix>an Co., 166 Mass. 322; 39 N. E. 1110. 42. Emery v. Langley, 1 Idaho 694. 43. Dunham v. Jackson, 6 Wend. 22. 44. Strong v. Blake, 46 Barb. 227. 45. Neiderhauser v. Ry. Co., 131 Mich. 550; 91 N. W. 1028. 60 THE LAW OF WAIVER cated intention of the creditor not to accept the offer 46 . 4. WAIVER OF FORFEITURES. A. GENERAL RULES : party for whose benefit a forfeiture has been pro- vided may be sufficient from which to imply that his right to the forfeiture has been waived. Thus, one holding several notes for the purchase price of land, who is entitled to a forfeiture for the non-payment of any one of them, waives his right to such forfeit- ure if, after default, he transfers any of the subse- quent notes to a bona fide purchaser 61 . Even if time is of the essence of a contract for the sale of land and there has been quite a delay in offering payment after the right to a forfeiture accrues, a vendor who accounts with his vendee and allows the latter to make expensive improvements and pay taxes is pre- cluded from declaring a forfeiture after such offer of payment 62 . Delay in giving notice after default will not, of itself, constitute a waiver of a right to a forfeiture, nor will lapse of time after default alone be sufficient 63 . Sec. 58. Conditions subsequent are frequently inserted in deeds, and a forfeiture of the estate or some other forfeiture provided in case of a breach 69. Alexander v. Jackson, 92 Cal. 514; 28 Pa. 693; 27 A. S. R. 158. 80. Stow v. Russell, 36 111. 18. Grigg v. Landls, 21 N. J. Eq. 494. Hutchings v. Hunger, 41 N. T. 158. 1. Iglehart v. Gibson. 56 111. 81. 2. Allen v. Woodrull, 96 111. 11. 63. Kerns v. McKean, 65 Cal. 411; 4 Pac. 404. CONTRACTS 65 of such a condition. A breach of thess conditions, also, may be waived by the party entitled to their performance. A party does waive his right to such a forfeiture by treating the contract and the condi- tion as still subsisting after a breach 64 . And the condition once dispensed with, or its breach waived, is gone forever and cannot later be insisted upon 65 . Where there" is a condition subsequent in a deed, the grantor may waive a right to a forfeiture and he will be held to have done so unless he enters for condition broken or brings ejectment 66 . Sec. 59. Where a grantee agreed, under the penalty of a forfeiture of the estate, to build a house in a certain time, but failed to do so, the grantor still 'being in possession, no positive act was necessary on the part of the latter in order to claim the forfeiture, and he did not waive his right thereto by failing to do some formal act 67 . "The right of entry for the breach of a condition subsequent may be waived or lost by laches. Therefore, where land was granted on the condition that it should be used as a burying ground, and that the grantees should build and keep a good fence around it, and it was used as a burying ground for more than forty-five years, hut no fence was ever erected around it, and no eomplaint was ever made of the absence of such fence, it is then too late for the successor in interest of the grantor 14. Hubbard v. Hubbard, 97 Mass. 188. 5. Sharon Co. v. Erie, 41 Pa. St. 341. Barrle v. Smith, 47 Mich. 130 ; 10 N. W. 168. Dakln v. Williams, 22 Wend. 201. 66. Ellis v. Kyger, 90 Mo. 606. 7. O'Brien v. Wagner, 94 Mo. 93 ; 4 A. S. R. 360. 66 THE LAW OF WAIVER to enter for condition broken" 68 . Where a deed con- tained a provision that there should 'be no saloon on the premises under penalty of forfeiture of the estate, the grantor was held to have waived such re- striction by subsequently conveying an adjoining tract without such condition 69 . If a conveyance con- tain a prohibition against the sale of liquor on the premises, it is no waiver of the condition if a single glass of liquor is sold thereon in the presence of the grantor 70 . C. IN LEASES : Sec. 60. Waivers of rights to forfeitures occur perhaps more frequently in agreements between landlord and tenant than in any other species of contracts unless it be those of in- surance. Most leases provide some condition sub- sequent, such as payment of rent by a certain time, a prohibition against sub-letting, or for making cer- tain repairs and improvements, which the tenant must comply with upon pain of a forfeiture for his failure. But it is the general rule that ' ' any act done by the landlord knowing of a cause of forfeiture by his tenant, affirming the existence of the lease, and recognizing the lessee as his tenant, is a waiver of such forfeiture" 71 . In order for a landlord to en- force a forfeiture provided for in a lease he must take active measures upon breach of the conditions. He must do some unequivocal act that would signify to the lessee in a decisive manner his election to de- termine the lease 72 . But unless the facts are such 68. Scovill v. McMahon, 62 Conn. 378; 26 Atl. 479; 36 A. S. R. 350. 69. Jenks v. Palowski, 98 Mich. 110; 56 N. W. 1105; 39 A. S. R. 522. 70. Plumb v. Tubbs, 41 N. Y. 442. 71. Webster v. Nichols, 104 111. 160. 72. Read v. Tuttle, 35 Conn. 25 ; 95 A. D. 216. Bowman v. Foot, 29 Conn. 331. CONTRACTS 67 as to show the creation of a new term, merely per- mitting the tenant to hold over without notice to quit is not a waiver of a forfeiture provided for in the lease under which the tenant entered 73 . Sec. 61. The provision in a lease for a forfeit- ure is for the benefit of the lessor, and a breach of the condition does not ipso facto render the lease void, but voidable at the option of the lessor, which option must be exercised at once if at all. "Where a lease is thus voidable, the landlord's option to avoid it should be exercised at the proper time and place" 74 . "By the terms of the lease, the term is not void by reason of a violation of the covenants ipso facto, but is voidable only at the option of the lessor. He may, or not, insist upon a forfeiture, and until he exercises the option reserved to declare or claim a forfeiture, the term continues. It is by his own act, and not that of the lessee, that the lease is terminated, and it is, of course, by his own omission to insist upon a forfeiture immediately upon viola- tion of the covenant, or as soon as he has knowledge of it, that he is placed in a situation in which he may waive a forfeiture" 75 . And if the landlord, having a right to declare a forfeiture on account of some 'breach of condition by his lessee, chooses to waive the breach and continue the lease, the lessee cannot set up his own default as a cause of forfeiture, nor urge it as a defense to an action to affirm the lease 76 . 73. Calderwood v. Brooks, 28 Cal. 151. 74. Bowman v. Foot, 29 Conn. 331. 75. Walker v. Engle, 30 Mo. 131. 76. Clark v. Jones, 1 Denio 516 ; 43 A. D. 706. Wills v. Mfg. Co., 130 Pa. St. 222 ; 18 Atl. 721. Ray v. Gas Co., 138 Pa. St. 576 ; 20 Atl. 1065 ; 21 A. S. R. 922. Bowyer v. Seymour, 13 W. Va. 12. Smith v. Miller, 49 N. J. L. 521 ; 13 Atl. 39. 68 THE LAW OF WAIVER The granting of a lease of premises to a second lessee after default in performance of conditions by the first lessee is not a waiver of a forfeiture for such default, but, on the other hand, is a manifesta- tion of an intention to insist upon the forfeiture 77 . Sec. 62. Probably the most frequent occurrence of the waiver of forfeiture by a landlord is the ac- ceptance by him of payment of rent after the ac- crual of his right to declare a forfeiture. And it is the general rule that if a landlord, after condition broken by his tenant, accept payment of rent after knowl- edge of such breach has been brought home to him, he waives the right to a forfeiture 78 . And the accept- ance by the landlord of rent accruing after breach of a condition is a waiver of his right to a forfeiture on account of such breach 79 . Eeceiving or distrain- ing for rent after the accrual of the right to a for- feiture, with knowledge of such right, is a waiver of it 80 . Eeceiving payment of rent in advance, know- ing of a breach of condition by the tenant sufficient to work a forfeiture, is a waiver of all past breaches and operates to extend the lease for the period paid for 81 . If a delay in paying rent has been acquiesced 77. Guffy v. Huklll, 34 W. Va. 49; 11 S. E. 754; 26 A. S. R. 901. All. Oil Co. v. Brad. Oil Co., 21 Hun 26; 86 N. Y. 638. Munroe v. Armstrong, 96 Pa. St. 307. 78. Little Rock Co. v. Shall, 59 Ark. 405 ; 27 S. W. 562. Dahm v. Barlow, 93 Ala. 120 ; 9 So. 598. McGlynn v. Moore, 25 Cal. 384. 79. Gomber v. Hackett, 6 Wis. 323 ; 70 A. D. 467, citing 2 Platt on Leases, 468. Taylor, Landlord & Tenant, Sec. 497. Jackson v. Allen, 3 Cow. 229. Bleecher v. Smith, 13 Wend. 530. Collins v. Canty, 6 Cush. 415. 80. Camp v. Scott, 47 Conn. 370. 81. Brooks v. Rogers, 99 Ala. 433 ; 12 So. 61. CONTRACTS 69 in by the landlord, and the tenant has thereby been induced to beli'eve that forfeiture for non-payment in time would not be insisted upon, equity will not enforce the forfeiture 82 . Sec. 63. But a right to a forfeiture is not waived by the landlord's receiving rent from an as- signee in bankruptcy, the assignment being a breach of the condition of the lease 83 . If both parties have habitually disregarded the provisions of a lease as to payment of rent, default in such payment cannot be urged as a forfeiture 84 . But a lessor does not waive his right to a forfeiture by accepting payment after notice to quit and applying it on installments due prior to the one for the payment of which the forfeiture is claimed 85 . And conditions of a con- tinuing nature are waived only as to the past breach- es where the landlord accepts payment of rent, and he does not waive his right to a forfeiture for future breaches 86 , But it has been held that a right of re- entry and forfeiture must be exercised during the term, and that failure to so exercise it is a waiver of it 87 . If, after non-payment of taxes, that being imposed upon the tenant by the terms of the lease, the landlord accept payment of the rent, he thereby waives his right to a forfeiture, and a continued fail- ure to pay the taxes does not amount to a revival of the right to declare a forfeiture 88 . 82. Thropp v. Field, 26 N. J. Eq. 82. 83. Med. Co. v. Currey, 162 111. 441; 44 N. B. 839; 53 A. S. R. 320. 84. West. Etc. Co. v. De Witt, 130 Pa. St. 235; 18 Atl. 724; 5 L. R. A. 731. 85. Carraher v. Bell, 7 Wash. 81 ; 34 Pac. 469. 86. Gluck v. Blkan, 36 Minn. 80; 30 N. W. 446. 87. Cheatham v. Blinke, 1 Tenn. Ch. M5. &8 Conger v. Durgee, 90 N. T. 594. 70 THE LAW OF WAIVEB Sec. 64. Many leases give the landlord the right to declare a forfeiture if the tenant sub-lets the premises. This right may 'be waived, and it is waived if, after its accrual, the landlord accepts or distrains for rent accruing after the right to a for- feiture has become fixed 89 . And he waives a breach of the condition against sub-letting by accepting pay- ment from the sub-lessee, knowing the facts as to the sub-letting 90 . But it is not waived by accepting the rent from an assignee in ignorance of the sub- letting 91 . But if he knew of the stub-letting and at- tempted to provide against it at the time, the waiver will still be held against him 92 . 5. WAIVER OF THE RIGHT TO 'RESCIND. 'Sec. 65. Waiver is the counter-part of election. To waive a right or course of conduct is to elect to forego the benefits of that right or to pursue another course. And it is well settled in law that a party having the privilege of following either of two in- consistent remedies who makes an election of one, commences his action thereon and prosecutes it to final judgment or receives anything of value there- under waives the right to thereafter pursue the other inconsistent remedy 93 . And it is also the rule that 89. McKildoe v. Darracott, 12 Gratt. 278. Ireland v. Nichols, 46 N. Y. 413. 90. Traverman v. Lippincott. 38 Mo. App. 478. 91. Kew v. Tralnor, 50 111. Afp. 629 : 150 IH. 150. 92. Crouch v. Wabash Ry., 22 Mo. App. 315. Gulf Ry. v. Settegast, 79 Tex. 256 ; 15 S. W. 228. 93. Fields v. Bland. 81 N. Y. 239. Carter v. Smith, 23 Wia. 497. Manser v. Jacob, 98 Mo. 331; 3 A. S. R. 531. Ewing v. Cook, 85 Tenn. 832 ; 3 S. W.- 607 ; 4 A. S. R. 765. Wheeler v. Dunn, 13 Colo. 48 ; 22 Pac. 827. CONTRACTS 71 he cannot abandon the remedy chosen and follow the other one 94 . The matter has been thus expressed: A man may not take two contradictory positions, and wh,ere he has the right to choose one of two modes of redress, and the two are so inconsistent that the assertion of one involves the negation or re- pudiation of the other, his settled and deliberate choice of one with knowledge or means of knowledge of such facts as would authorize a resort to either, will preclude him thereafter from going back and electing again 95 . 'Sec. 66. These considerations apply with great force in the rescission of contracts, and especially those induced by fraud. But in such cases it is es- sential to constitute a valid waiver of the right of rescission the party should have full knowledge or means of knowledge of the material facts, that he should intend to affirm the contract and abandon all right to recover for loss resulting from the fraud 96 . And the defrauded party, after discovery of the fraud has two remedies: He may rescind the con- tract, if he can restore what he has received under it, and sue for the consideration he has paid, or if he has not paid anything, he can repudiate the con- tract and rely on the fraud as a defense to an action for the consideration ; or he may retain what he has Bradley v. Brigham, 149 Mass. 141 ; 21 N. E. 301. Ihomas v. Joslin, 36 Minn. 1; 29 N. W. 344; 1 A. S. R. 624. Farwell v. Myers, 59 Mich. 179 ; 26 N. W. 328. 94. Crompton v. Beach, 62 Conn. 25; 25 Atl. 446; 36 A. S. R. 321. Lehnjan v. Van Winkle, 92 Ala. 443 ; 8 So. 870. Bauman v. Jaffray, 6 Tex. Civ. App. 489 ; 26 S. W. 260. OTDonald v. Constant, 82 Ind. 212. 95. Thompson v. Howard, 31 Mich. 312. 96. Cooley on Torts, 505. 72 THE LAW OP WAIVER received and sue for damages for the fraud, in which case he affirms the contract but does not waive his right to damages for the fraud 97 . But it has been held that if a defrauded party, after full knowledge of the fraud, refuses to repudiate the contract but expressly ratifies it, he waives his right to sue for damages 98 . It is otherwise if he has not full knowl- edge of the fraud, for then his ratification does not waive his right to damages 99 . And it has been said that a party to a fraudulent contract, who is not at fault, may waive his right to rescind and can then sue for the damages he has sustained; by such waiver he does not lose his right to recover for his injury 100 . Sec. 67. A party loses his right to rescind a contract induced by fraud if he bring an action to enforce it after knowing that he has such right 1 , or if he discover the fraud during the progress of the action and continue the case thereafter 2 . And if a vendor, knowing of fraud in the contract, recover 97. Wilson v. Hundley, 96 Va. 96; 30 S. E. 492; 70 A. S. R. 837. Baird v. Howard, 51 Oh. St. 57; 36 N. B. 732; 46 A. S. R. 550. Bowen v. Mandeville, 95 N. T. 237. Cottrill v. Krum, 100 Mo. 397; 13 S. W. 753; 18 A. S. R. 549. 98. Nounnan v. Sutter Land Co., 81 Cal. 1 ; 22 Pac. 515. St. John v. Hendrickson, 85 Ind. 350. 99. Johnson v. Culver, 116 Ind. 278; 19 N. E. 129. Kraus v. Thompson, 30 Minn. 64; 14 N. W. 266; 44 A. R. 182. 100. Tiffnay, Sales, 119. Matlock v. Reppy, 47 Ark. 148; 14 S. W. 46. Peck v. Brewer, 48 111. 55. Robinson v. Siple, 129 Mo. 208 ; 31 S. W. 788. Herrin v. Libbey, 36 Me. 357. Pearsoll v. Chapln, 44 Pa. St. 9. 1. Acer v. Hotchkiss, 97 N. T. 395. Nelson v. Carrington, 4 Munf. 332; 6 A. D. 519. Pettus v. Smith, 4 Rich. Eq. 197. 2. Sanger v. Wood, 3 Johns. Ch. 416. CONTRACTS 73 judgment against the vendee, he cannot follow the goods either in the hands of the vendee or a pur- chaser from him; nor can he claim the property if he sue for the purchase price 3 ; and, conversely, pay- ment of the purchase price after knowledge of fraud in the sale is a waiver of the right to rescind 4 . Sec. 68. There is some difference among the authorities as to whether a defrauded vendor of goods, by attaching the goods, waives his right to rescind the contract of sale. On the one hand, it is said that such attachment is a complete waiver of the right to rescind 5 . In the last case cited in the above note it is said that "as the plaintiff had an election between inconsistent remedies, as where one action is founded on an affirmance of a voidable contract, any decisive act of affirmance or disaffirm- ance, if done with knowledge of the facts, deter- mines the right of the parties once and for all ; and that the institution of the attachment suit by plaint- iff was such a decisive act." And it is again ex- pressed thus: "The attachment was levied and the action pending when the present action, which re- pudiates the contract and has no support except on the theory of its disaffirmance was commenced. The Beloit Bank v. Beale, 34 N. Y. 475. Carter v. Smith, 23 Wis. 499. Morris v. Rexford, 18 N. Y. 552. Lloyd v. Brews ter, 4 Paige 537; 27 A. D. 88. O'Donald v. Constant, 82 Ind. 212. Bulkley v. Morgan, 46 Conn. 393. Dennis v. Jones, 44 N. J. Eq. 513 ; 14 Atl. 913 ; 6 A. S. R. 899. Knuckolls v. Lea, 10 Hump. 577. Bulkley v. Morgan, 46 Conn. 393. Acer v. Hotchkiss, 97 N. Y. 395. O'Donald v. Constant, 82 Ind. 212. Conrow v. LiUie, lli .N. Y. i., .. X. B. M *v,, i .u Jti. A. uji. 74 THE LAW OF WAIVER two remedies are inconsistent by one the whole es- tate of the delbtor is pursued in a summary manner, and the payment of a debt sought to be enforced by execution ; by the other, specific articles are demand- ed as the property of the plaintiff. One is to re- cover damages in respect of the breach of contract ; the other can be maintainable only by showing that there was no contract. After choosing between these two modes of proceeding, the plaintiffs no longer had an option. By bringing the first action after knowledge of the fraud practiced, the plaintiffs waived the right to disaffirm the contract, and the defendants may justly hold them to their election" 6 . On the other hand it is maintained that the bringing of an attachment suit is" not necessarily, nor even prima facie an affirmance of the contract nor a waiver of the right to rescind; and that the levy of an attachment on property as that of the defendant is not a waiver of the right of the plaint- iff to seize the property as his own 7 . The courts supporting the latter doctrine, however, seem to do so with some qualification. They seem to indicate that if the attachment suit were prosecuted to final judgment the right of plaintiff to change positions and bring an inconsistent action would be gone, but that he could bring such action at any time before judgment. It has been said thus: "A creditor hav- ing elected simply to pursue one of two inconsistent . Conrow v. Little, supra. 7. Johnson v. Frew, 33 Hun 193. Equitable Foundry Co. v. Hersee, 33 Hun 169. Anchor Milling Co v. Walsh, 20 Mo. App.' 107, Lapp v. Ryan, 23 Mo. App. 136. Johnson-B. Co. v. Cent. Bank, 116 Mo. 558; 22 S. W. 813; 33 A. S. R. 615. CONTRACTS 75 remedies is not bound thereby but may subsequently dismiss and abandon before final judgment the one first chosen, and then pursue the other in the absence of intervening rights, injury or benefit" 8 . Sec. 69. It is difficult to concur in the reason- ing of the cases holding to the latter doctrine. We think that a party, in possession of all the material facts should know his own mind, that he should be able to determine what remedy he desires to pursue, that if he be competent to contract he should be com- petent to say which of two remedies it is to his ad- vantage to follow, and once having determined there- on, he should be required to abide the result of his own judgment, and not be permitted to play fast and loose either during the pendency of the action or after the final judgment therein. For by an at- tachment he says that the property is that of the de- fendant. The proceeding is re-enforced by the so- lemnity of an affidavit, and it is hardly in keeping with the requirements of good faith to permit him later to retract his declaration thus solemnized. And, in fact, under such doctrine there is nothing to prevent him from dismissing even his second action if he should, after filing it, conclude it not to be to his best interests, and again resort to his first action or even enter a new form of suit. The spirit of fair play demands the application of the well -settled rule that a defrauded party has but one election to re- scind or" affirm the contract ; a'nd his election, once made, is final and conclusive 9 . 8. Johnson-B. Co. v. Mo. Pac. Ry., 126 Mo. 344; 28 S. W. 870; 47 A. S. B. 675. 9. Grymes v. Sanders, 93 U. S. 55. 70 THE LAW OF WAIVEB Sec. 70. The authorities are agreed, however, that there cannot be an election of remedies, or a waiver of fraud or the right to rescind a contract induced 'by fraud unless the party had full knowl- edge or means of knowledge of all the material facts in the case 10 . This is under the rule applicable to all waivers that knowledge of a right is an absolute pre- requisite to an abandonment of the right. But after knowledge of the fraud is brought home to a party, he must exercise his right to rescind the contract within a reasonable time thereafter or the right will be forever lost to him 11 . Or, as it has been said, a party must exercise his right promptly or it will be denied him 12 . And if he waits a considerable length of time, he will be held to have waived the right by acquiescence 13 . What is a reasonable time depends Bigelow on Fraud, 436. Hart v. Miller, 95 Va. 321 ; 27 S. B. 831. Wilson v. Hundley, 96 Va. 96; 30 S. E. 492; 70 A. S. R. 837. Bigelow on Estoppel, 5th Ed. 573. Herman on Estoppel, (1886) 1177. Thweatt v. McLeod, 56 Ala. 375. Evans v. Montgomery, 50 la. 235. Bassett v. Brown, 105 Mass. 551. 10. Sanger v. Wood, 3 Johns. Ch. 421. Connlhan v. Thompson, 11 Mass. 270. Terry v. Munger, 121 N. Y 161; 24 N. E. 272; 18 A. S. R. SOS. Bulkley v. Morgan, 46 Conn. 393. 11. Bank v. Hiatt, 58 Cal. 234. Whitcomb v. Denio. 52 Vt. 382. Wilbur v. Flood, 16 Mich. 40. Morgan v. McKee, 77 Pa. St. 228. Neblett v. McFarland, 92 U. S. 101. Cookingham v. Dusa, 41 Kans. 229 ; 21 Pac. 95. Gatllng v. Newell, 9 Ind. 572. Taylor v. Short, 107 Mo. 384; 17 S. W. 970. 1*. Hall v. Fullerton, 67 111. 450. White v. Dodds, 42 Barb. 565. 13. 2 Pomeroy Eq. Jur. 499 and 817. Bassett v Salisbury Mfg. Co., 47 N. H. 426. Tash v. Adams. 10 Gush. 252 (Mass.). Cobb v. Hatfleld. 46 N. T. 533. CONTRACTS 77 on the facts and circumstances of each particular case. Delays for one and one-half 14 , three 15 , and eight years 16 have been held fatal to the right to re- scind. Sec. 71. It is further the rule that one desiring to be relieved from a contract induced by fraud must not only act promptly in repudiating the contract, but he must not do any act evidencing an intention to be bound by it. Such act will constitute a waiver of the right to rescind. For instance, remaining in possession of the subject-matter of the contract 17 , making payments 18 , and asking extensions of time 19 have been held sufficient to evidence a ratification, and, therefore, to constitute a waiver of the right to rescind. And the same result follows the continuing to deal with the property after knowledge of fraud in its sale as if the contract still subsisted 20 . But it is said that mere possession for a considerable time will not of itself amount to a waiver of the right to rescind 21 . And neither does a sale of part of the property amount to a waiver if the proceeds are ac- counted for 22 . So, receiving part of chattels under a 14. Hammond v. Wallace, 85 Cal. 522 ; 24 Pac. 837 ; 20 A. S. R. 234. 16. Blackman v. Wright, 96 la. 541; 65 N. W. 843. 16. Boyer v. East, 161 N. Y. 580 ; 56 N. E. 114 ; 76 A. S. R. 290. 17. Dennis v. Jones, 44 N. J. Eq. 513; 14 Atl. 913; 6 A. S. R. 899. Knuckolls v. L-ea, 10 Hump. 577. 18. Ruhl v. Mott, 120 Cal. 668 ; 53 Pac. 304. Delano v. Jacoby, 96 Cal. 275; 31 Pac. 290; 31 A. S. R. 201. 19. Delano v. Jacoby, 96 Cal. 275; 31 Pac. 290; 31 A. S. R. 201. SO. Bassett v. Brown, 105 Mass. 551. 1 Story's Eq. Jur. (13th), p. 227. Schubber v. Dletz, 83 N. Y. 300. McClean v. Clapp, 141 U. S. 429. Marshall v. Gilman, 47 Minn. 131; 49 N. W. 688. 21. Neblett v. McFarland, 92 U. S. 101. Goodrich v. Lathrop, 94 Cal. 56 ; 29 Pac. 329 ; 28 A. S. R. 91. 22. Tarkington v. Purvln, 128 Ind. 182; 25 N. E. 879; 9 L. R. A. 607. 78 THE LAW OF WAIVER fraudulent contract is not a waiver of the right to damages 23 . But retaining the benefits of a fraudulent contract amounts to a waiver of the right to rescind 2 ^ And if a party waive his right to rescind, he at the same time loses his right of stoppage in transitu 25 . If a party continue to carry goods to a certain place after discovering the owner has misrepresented the distance, he waives the right to rescind his contract to carry the goods 26 . A party desiring to rescind a contract cannot hold on to such part of what he has received under it as is desirable to him and avoid the residue ; and the rule is that he must return what he has received or he waives the right to rescind 27 . 23. Mallory v. Leach, 35 Vt. 156; 82 A. D. 625. Haven v. Neal, 43 Minn. 315; 45 N. W. 612. 24. Bowman v. Ayers, 2 Idaho 305; 13 Pac. 346; and 2 Idaho 465' 21 Pac. 405. 25. Kearney, etc., Co. v. Union Pac., 97 la. 719; 66 N. W. 1099; 59 A. S. R. 434. 26. S. & S. Ry. Co. v. Row, 24 Wend. 74; 35 A. D. 588. 27. Bowman v. Ayers, supra. BELLS AND NOTES 79 CHAPTER 3. BILLS ANiD NOTES. 1. IN GENERAL ...................... 2. WAIVER CONTAJNEiD IN THE INSTRUMENT _ A. On face of instrument ............ 74 B. Waiver in indorsement ........... . 75 3. ORAL WAIVER A. Concurrently with indorsement ......... , 76 B. Subsequently to indorsement, but prior to maturity ....................... _ 73 C. At maturity ...................... t 79 D. After maturity ........................ 80 4. WAIVEIRS AFTER DE1FAULT A. By promise to pay (1 ) Sufficiency of promise ............. 81 (2) Conditional promises .............. 85 (3) Insufficient promises ............. 86 B. Knowledge essential to promise ........... 88 (1) Whether promise presumes knowledge 90 (2) Knowledge of legal effect of holder's default .......................... 94 C. Payment or part payment as waiver ........ 95 D. Receipt by indorser of money, property or other security as waiver ................ 97 IB, Waiver by conduct ..................... 104 5. CONSIDERATION FOR WAIVER .............. 105 6. WH'ETHEIR WAIVER IS WITHIN STATUTE OF FRAUDS .......................... ......... 109 7. EXTENT OF WAIVER ........................ 110 1. IN GENEBAL:--Sec. 72. As far as it is applicable to commercial paper, the law of waiver has to do almost solely with its presentment for payment, protest and notice. And it follows that a considera- 80 THE LAW OF WAIVER tion of the subject involves a dealing chiefly with the parties secondarily liable on the paper. Such parties have an absolute right to the formalities required by law to render their liability fixed, and, unless excused by some act of their own, these formalities must be complied with or the parties will be released from the paper. But the holder of such paper is in many in- stances and under many circumstances absolved from his duty in fixing liability upon the parties secondar- ily liable, and the liability of the latter may become absolute even in the absence of presentment, protest and notice. Prompt presentment, protest and notice are requirements of the law existing solely for the benefit of a drawer or indorser of a bill or note. It is wholly in their province to determine whether they will insist upon the fulfillment of these requirements. They may dispense with such formalities by express agreement, or by language or conduct clearly and reasonably disclosing an intention not to insist upon them. In either of such events it becomes unneces- sary for the holder of a commercial instrument to take the steps otherwise required, for by the agree- ment or conduct of the one entitled to requir these steps they have been waived, and it would be a fraud upon the holder to permit him to suffer through the inconsistent language or conduct of the drawer or indorser. Sec. 73. A waiver of presentment, protest and notice may be made by him who is entitled to require it either orally or in writing; and whether the one or the other, the waiver may be expressed in direct and positive terms, or it may result from an under- standing between the parties from which it is rea- sonably to be inferred that a waiver was intended, BILLS AND NOTES 81 or it may be shown by custom 28 , or implied from con- duct indicating that these steps would not be re- quired. Where statutory provisions exist governing the taking of these formal steps, of course these pre- vail 29 . And where a waiver has occurred, proof thereof is equivalent in every way to the taking of the steps 30 . But it is essential to every waiver of presentment, protest and notice that at the time thereof the (party against whom the waiver is sought to be established must have knowledge of the facts discharging him from liability, or at least means whereby he could acquire such knowledge. Without being aware of the facts, no waiver can be imputed to him 31 . But it is not requisite that he should have knowledge of the legal effect, for he will be bound by his waiver whether he had knowledge of the law or not 32 , although such has been denied by a great number of courts under a holding that the one against whom the waiver is sought to be invoked must, at the time of the alleged waiver, know the law as well as the facts 33 . The weight of judicial think- 28. Quaintance v. Goodrow, 16 Mont. 376 ; 41 Pac. 76. Glidden v. Chamberlin, 167 Mass. 468 ; 46 N. E. 103 ; 57 A. S. R. 479. Annville Bank v. Kettering, 106 Pa. St. 531; 51 A. R. 536. Hyde v. Stone, 61 U. S. 20 How. 17 ; 15 L. Ed. 874. 29. Thomas v. Mayo, 56 Me. 40. 50. Pugh v. McCormick, 81 U. S., 14 Wall. 361; 20 L. Ed. 789. Perry v. Rhodes, 2 Cranch C. C. 37. 51. Norris v. Ward, 59 N. H. 487. Tickner v. Roberts, 11 La. 14 ; 30 A. D. 706. Lilly v. Petteway, 73 N. Car. 358. Low v. Howard, 11 Gush. 268 (Mass.). Baskervlll v. Harris, 41 Miss. 535. 82. Hughes v. Bowen, 15 la. 446. Morgan v. Peet, 41 III. 347. Third Bank v. Ashworth, 105 Mass. 503. S. Spurlock v. Union Bank, 4 Hump. 336 (Tenn.). Freeman v. O'Brien, 38 la. 407. THE LAW OF WAIVER ;v ? - v f- "ii ing is in favor of the rule that knowledge of the law is not essential to a valid waiver, and, in fact, no good reasons exist for making here an exception to the rule that ignorance of the law is no excuse. The greater number of cases are to the contrary. 2. WAIViBR CONTAINED IN THE INSTRUMENT. A. ON FACE OF INSTRUMENT: See. 74. An express waiver of presentment, protest or notice is frequently embodied in a 'bill or note, and in case this is done the waiver is effectual against an in- dorser in 'blank who is also the payee 34 . For by his indorsement he makes the contract on the face of the instrument his own and adopts its terms. And the same result follows whatever the provision on the face of the instrument may be, provided the word used fairly show an intention that either pre- sentment, protest or notice shall be dispensed with, as where on the face of the instrument such ex- pressions are used as "presentation and protest waived," " demand, protest and notice of protest waived," "the makers, indorsers and guarantors severally waive presentment for payment, notice of non-payment, protest and notice of protest." Such provisions are valid waivers as against drawers and indorsers, as they assume the liabilities attaching to the instruments by so becoming parties thereto 36 . And while this is especially true if the waiver ex- 34. Phillips v. Dippo, 93 la. 35; 61 N. W. 216; 57 A. S. R. 254. 85. Citz. Bank v. Millet. 103 Ky. 1 ; 44 S. W. 3. Depass, 2 La. Ann. 16. 93. Sherrod v. Rhodes, 5 Ala. 683. 94. Freeman v. O'Brien, 38 la. 406. 95. Bird v. Kay, 40 App. Div. 533; 58 N. T. Supp. 170. 96. Norton v. Lewis, 2 Conn. 478. Michand v. Lagardw, 4 Minn. 43. , 97. Button v. Bratt, (Ark.) ; 11 S. W. 821. 96 THE LAW OF WAIVER Where an indorser 'before maturity of the note is in- formed 'by the holder that the maker denied liabil- ity and had told him they would not pay it, and the indorser stated that he did not have the money to pay the note but that he was liable and that if the holder would sue the maker, and should fail to re- cover from him, that he would pay it himself, the indorser was held not to have thereby waived pre*- sentment and notice 68 . B. KNOWLEDGE OF DEFAULT ESSEN- TIAL TO PROMISE: Sec. 88. It is the unani- mous opinion of the courts that a promise of ar> in- dorser or drawer to pay a note or bill after its matur- ity must be made with full knowledge that present- ment and protest have not been made or notice given, and that after knowledge of the material facts affecting hns liability he still manifests in some way, deducible into a promise, his willingness to be bound. For it is said that a promise to pay made in ignor- ance of the promissor's rights is of no effect as a waiver". This must necessarily be apparent in con- sidering what was said in the beginning of this vol- ume, that in order to waive a right a knowledge of 8. Worley v. Johnson, 60 Fla. 294 ; 68 So. 543 ; 33 L. R. A. (N. 8.) 639. 99. Turnbull v. Maddux, 68 Md. 579; 13 Atl. 334. Hudson v. Wolcott, 39 Oh. St. 623. Bank v. Farnsworth, 7 N. Dak. 6 ; 72 N. W. 901. Blum v. Bidwell, 20 La. Ann. 43. Glaser v. Rounds, 16 R. I 237; 14 Atl. 863. Salisbury v. Rennlck, 44 Mo. 454. Schierl v. Bauinel, 75 Wis. 75 ; 43 N. W. 724. Hunt v. Wadleigh, 26 Me. 271 ; 45 A. D. 108. Low v. Howard, 11 Gush. 268 (Mass.). Lilly v. Petteway, 73 N. Car. 358. Norrls v. Ward, 59 N. H. 487. BILLS AND NOTES 97 such right must actually exist in the mind of him against whom the waiver is alleged, or there must be such facts and circumstances as will attribute knowl- edge to him. And since such knowledge must be brought home to an indorser, it follows that when it is shown that an indorser or drawer promised to pay an instrument after its maturity when no de- mand had been made or notice given, it must also be shown that the holder's failure in these respects was known to the indorser or drawer 100 , or that knowledge was imputed to him, as held by some cases hereinafter discussed. And it is said that it matters not how clear the proof of the promise or in how strong terms it may be couched, this knowledge of facts must apfpear 1 . It is said that knowledge of the holder's default is an indispensable part of the promise, for without it, it cannot be inferred that the indorser intended to admit the right of the hold- er to resort to him if, in point of fact, the holder had been guilty of such laches as would discharge the indorser in point of law 2 . Sec. 89. It being the rule that an indorser must have full knowledge of the holder's laches and of all the material facts in order that his promise to pay may be binding upon him as a waiver 3 , it has been 100. 1 Parsons, Notes & Bills, 601. Story on Bills, 320. Cloz et al. v. Miracle, 103 la. 198 ; 72 N. W. 502. Walker v. Rogers, 39 111. 279. Baskerville v. Harris, 41 Miss. 535. 1. Farrlngton v. Brown, 7 N. H. 271. t. Thornton v. Wynn, 12 Wheat. 183 (U. S.) ; L. Ed. 595. Wtorklngmen's Bkg. Co. v. Beell, 57 Mo. App. 410. S. O'Rourke v. Hanchett, 35 N. Y. Supp. 328; 69 N. T. St. R. 717. Parks v. Smith, 155 Mass. 26 ; 28 N. E. 1044. Walker v. Rogers, 40 111. 278; 89 A. D. 348. Martin v. Wlnslow, Fed. Gas. No. 9172. 98 THE LAW OF WAIVER held that a request of an indorser for a renewal of the note, accompanied by part payment, are not such acts as constitute a waiver unless at the time he has knowledge of the facts by which he has been re- leased 4 ; and the same is true of any other faots which can 'be construed as a promise to pay made after default of the holder. The rule, therefore, an- nounced and universally adhered to is thus stated : A promise by the indorser of a promissory note to pay it, with full knowledge of the laches of the hold- er in regard to presentment, protest or notice, is a waiver of the laches of the holder and renders the indorser liable on the note 5 . (1) WHETHER PROMISE PRESUMES KNX)W^ELD<}E : Sec. 90. When it is conceded or proved that there was laches of the holder in respect to demand, protest or notice, the promise to pay after maturity should be regarded as prima facie evidence that the party making it knew of such laches, whenever such knowledge is deemed necessary to constitute a waiver. It is a promise against interest. The drawer or indorser should U S. Bank v. Southard, 17 N. J. L. 473 ; 35 A. D. 521. City Bank v. Clinton Bank, 49 Oh. St. 351; 30 N. E. 958; 27 Oh. L. J. 325 ; 6 Bkg. L. J. 515. 4. Carnegie Steel Co. v. Const. Co. (Tenn. Ch.) ; 38 S. W. 102. 5. Smith v. Lonsdale, 6 Oreg. 78. Amor v. Stoeckele, 76 Minn. 180; 78 N. W. 1046. Curtis v. Sprague, 51 Cal. 239. Shaw v. McNeill, 95 N. Car. 535. Oxnard v. Varnum, 111 Pa. St. 193 ; 2 Atl. 224 ; 56 A. R. 255. Stone v. Smith, 30 Tex. 138; 94 A. D. 299. Tardy v. Boyd, 26 Gratt. (Va.) 637. Bogart v. McClung, 11 Heisk. (Tenn.) 105; 27 A. R. 737. Parsons v. Dickinson, 23 Mich. 56. Rosson v. Carroll, 90 Tenn. 90 ; 16 S. W. 66 ; 43 Alb. L. J. 493. Schwartz v. Wilmer, 90 Md. 136; 44 Atl. 1059. Farrington v. Brown, 7 N. H. 271. BILLS AND NOTES 99 know when the instrument to which he was a party fell due. His promise to pay presumes it to be over- due and unpaid. And if he has not received notice, he has every reason to suppose that it was not given, and that the steps which should precede it were not taken 6 ; and it is otherwise said that evidence of a promise to pay is admissible as tending to show that due notice had actually been received 7 ; and that a promise to pay furnishes presumptive evidence that the proper steps were taken to bind the one making the (promise 8 . Sec. 91. Mr. Daniel in his work on Negotiable Instruments not only states as a'bove quoted that a promise by an inolorser to pay an instrument after its maturity should be regarded as prima facie evi- dence that the indorser knew at the time of the promise of the laches of the holder in respect to pre- sentment, protest and notice, but he further says that there is certainly strong ground for contending that upon principles of estopjpel proof of a distinct promise to pay after maturity (no question of fraud or deceit arising) should in itself close all contro- versy as to demand, protest and notice. The drawer may not only waive the fact that demand, protest or notice were not duly made or given, he may also 6. 2 Daniel, Negot. Inst. (5th Ed.) 1152, and cases cited. 7. Myers v. Standart, 11 Oh. St. 29. 8. Stix v. Mathews, 63 Mo. 371. Brennan v. Lowry, 4 Daly 253 (N. T.). Walker v. Walker, 7 Ark. 552. Frost v. Harrison, 8 La. Ann 122. Hazard v. White. 26 Ark. 155. Cardwell v. Allen, 33 Gratt. (Va.) 160. Davis v. Miller, 88 la. 114 ; 55 N, W. 89. Sherman v. Clark, 3 McLean 91 ; Fed. Gas. No. 12,763. Breed v. Hillhouse, 7 Conn. 523. 100 THE LAW OF WAIVER waive proof that they were made or given. And when he promises to pay the bill or note, such (promise imports an unconditional assumption of it, and a dispensation with whatever preliminary evi- dence might be necessary to charge him with its pay- ment. The holder is thereby advised that the party raises no question as to his liability, and to permit him when sued to require other proof of what he has recognized might enable him to practice a fraud by lulling the holder to quiet reliance on his promise, and then springing the defense upon him unawares, and good faith would seem to suggest that if the party deliberately promises to pay, he shall not after- ward go behind that promise and deny facts which it presupposes and is impliedly based upon 9 . Sec. 92. But excellent as the above reasoning is, and supported as it is by some authorities 10 , it is not the doctrine sustained by the weight of author- ity. The majority of the courts do not, as perhaps a few do 11 , go to the extent of holding that a holder of a commercial paper has the burden of showing that his laches in regard to presentment, protest and notice was known to the indorser at the time of a promise by the latter to pay, made after maturity of the instrument. The tendency has been, as sug- gested by Mr. Daniel 12 , to strike an intermediate at- 9. 2 Daniel, Negot. Inst. (5th Ed.) 1149. 10. See following cases, cited by Daniel, supra: Debuys v. Mollere, 15 Mart. 318. Bogart v. M'Clurg, 11 Heisk. 105 (Tenn.). First N. Bank v. Weston, 25 App. Div. 414; 49 N. T. Supp. 542. Porter v. Thorn, 30 App. Div. 363 ; 51 N. T. Supp. 974. 11. Good v. Sprigg, 2 Cranch C. C. 172 ; 10 Fed. Cas. No. 5532. Hunt v. Wadleigh, 26 Me. 271; 45 A. D. 108. 12. 2 Daniel, Negot. Inst. 1150. BILLS AND NOTES 101 titude and rest the decisions upon the doctrine that in case of a promise by an indorser or drawer after maturity of an instrument to pay same, such indors- er or drawer has the burden of proving the laches of the holder in regard to presentment, protest and no- tice, and must rebut the ^presumption arising from his promise that he had knowledge of the holder's laches 13 . But the cases are 'by no means harmonious as to this doctrine, and a state of flat contradiction may be said to exist among the courts. Sec. 93. A few cases may illustrate the doc- trines discussed in the preceding section. The burden of showing that the new promise was with knowledge of all the facts is on the party seeking to charge the indorser 14 . If laches appears, there must be clear proof that the defendant knew of it at the time he made the promise 15 . The plaintiff must show knowledge by the indorser that at the time he made the promise no notice had been given him, in order to establish a waiver 16 . The plaintiff must show that at the time the promise was made the promisor had notice that he was discharged 17 . The burden is on the plaintiff to show that the promise was made with full knowledge of the laches 18 . 13. Loose v. Loose, 36 Pa. St. 538. Smith v. Janes, 20 Wend. 192 ; 32 A. D. 527. Veazie v. Rowland, 53 Me. 38. 14. Walker v. Rogers, 40 111. 278 ; 89 A. D. 348. 16. Glaser v. Rounds, 16 R. I. 235 ; 14 Atl. 863. 16. Glassford v. Davis, 46 N. J. L. 348. 17. Harris v. Allnut, 12 La. 465. 18. Vanwlckle v. Downing, 19 La. Ann. 83. Spurlock v. Bank, 4 Hump. 336. U. S. Bank v. Southard, 17 N. J. L. 473 ; 35 A. D. 521. La. Bank v. Buhler, 22 La. Ann. 83. 102 THE LAW OF WAIVER Contrary to the above, it is said that a promise to pay, made after maturity of a bill or note, throws upon the promisor the douible burden of showing laches and that he was ignorant thereof 19 . Knowl- edge of the facts may be inferred from circum- stances 20 and in the absence of evidence to the con- trary a promise to pay will be presumed to have been made with full knowledge of all the facts 21 . The jury may presume knowledge from the circum- stances 22 . (2) KNOWLEDGE OF LEGAL EFFECT OF HOLDER'S DEFAULT : Sec. 94. It 'being a maxim of the law that ignorance of the law excuses no one, its application to a promise of payment by an indorser with knowledge of the facts constituting his discharge leads to the inevitable rule that his ignorance of the legal effect of such facts in consti- tuting a waiver of presentment, protest and notice will not release him from the obligation of the waiv- er 23 . A contrary view has been taken 24 , but the doc- trine almost universally adhered to at the present 19. Oxnard v. Varnum, 111 Pa. St. 193 ; 2 Atl. 224 ; 56 A. R. 255. Commercial Bank v. Clark, 28 vt. 325. Schmidt v. Radcliffe, 4 Strobh. L. 296 ; 53 A. D. 678. 20. Givens v. Mer. Bank, 85 111. 442. Hughes v. Bowen, 15 la. 446. 21. Davis v. Miller, 88 la. 114 ; 55 N. W. 89. 22. Hopkins v. Liswell, 12 Mas. 52. See: Seldner v. Bank, 66 Md. 488; 8 Atl. 262. 23. Toole v. Crafts, 193 Mass. 110; 78 N. E. 775. Morgan v. Peet. 41 111. 347. Matthews v. Allen, 16 Gray 594 ; 77 A. D. 430. Cheshire v. Taylor, 29 la. 492. Story on Bills, 320. 24. Ballin v. Betcke, 11 la. 204. Fleming v. McClure, 1 Brev. 428 ; 2 A. D. . Thorn, 30 App. Dlv. 363 ; 51 N. T. Supp. 974. 34. Williams v. Robinson. 13 La. 419. BILLS AND NOTES 105 D. RECEIPT BY INDORSEE OF MONEY, PROPERTY OR OTHER SECURITY : Sec. 97. Where an indorser or drawer receives from the one primarily liable on a commercial instrument, money or othr property with the understanding that the debt shall be paid therefrom, such indorser or draw- er renders himself liable as the principal debtor, and as to him presentment, protest or notice are unnec- essary 35 . And it is held in many cases without quali- fication that the taking by an indorser of an assign- ment of all of a maker's property as security against his liability constitutes a waiver of the in- dorser 's right to require demand, protest and no- tice 36 ; and further that this constitutes such waiver whether or not the property is amply sufficient to protect the indorser 37 . So the taking of a confes- sion of judgment covering all the estate of the mak- er of a note has been held a waiver of demand and notice 38 . Sec. 98. But these doctrines are now not gen- erally sustained, and it is said that the taking of an assignment of all the property of the maker is not necessarily or even presumptively a waiver of the requisite legal steps to bind the indorser 89 . The cri- 35. Story, Notes, Sec. 281. Bond v. Farnham, 5 Mass. 170. Ray v. Smith, 17 Wall. 418 (U. S.). Wright v. Andrews, 70 Me. 86. 2 Daniel, Negot. Inst. 1128. 36. Edwards on Bills, 637. 1 Parsons, Notes & Bills, 560. May v. Boissean, 8 Leigh 213. Bond v. Farnham, supra. 87. Watkins v. Crouch, 5 Leigh 522. 38. Bank v. Myers, 1 Bailey 412 (S. Car.). 89. Creamer v. Perry, 17 Pick. 182. 1 Parsons, Notes ft Bills. 660. Haskell v. Boardman, 8 Allen 39. 106 THE LAW OF WAIVER tenon seems to be whether the indorser of the in- strument received the money or property from the maker with the express agreement that it was to be used to pay the note, or whether it was to be held only as security against liability. If the former, then demand, protest and notice are unquestionably waived 40 . So, where an indorser took an assign- ment of a maker 's property to sell it and pay all the maker's debts, but to first pay the note signed by the indorser, demand and notice were thereby waived as the indorser became the principal 41 . Sec. 99. The question of whether the security taken is ample to protect the indorser, has often been the deciding point as to whether or not the taking of security is a waiver by the indorser of demand, pro- test and notice. Many authorities hold that the se- curity, if ample to protect the indorser, will consti- tute a waiver 42 . And, on the other hand, they hold that if the security is insufficient to fully protect the indorser, there is no waiver 43 . But the better rea- soning, and that which has the most support among 40. Wilson v, Senier, 14 Wis. 3SD. Spencer v. Harvey, 17 Wend. 489. Woodman v. Eastman, 10 N. H. 367. Ray v. Smith, 17 Wall. 416. Moses v. Ela, 43 N. H. 560. 41. Mech. Bank v. Griswold, 7 Wend. 165. Clift v. Rogers, 25 Hun 41. 42. 3 Kent. Com. 113. Develing v. Ferris, 18 Oh. 170. Beard v. Westerman, 32 Oh. St. 29. Marshall v. Mitchell, 35 Me. 221. Durham v. Price, 5 Terg. 300. Smith v. Lonsdale, 6 Oreg. 157. Story on Notes, 281. 43. Watkins i>. Crouch, 5 Lefgh 522. Second Nat. Bank v. McGuire, S3 1 Oh. St. 295. Spencer v. Harvey, 17 Wend. 489. BILLS AND NOTES 107 the authorities, is that stated by Mr. Daniel: "It seems to us a total misconception of the obligation of an indorser to place his liability at all upon any question involving the question of the pecuniary cir- cumstances of his principal, or security to himself, unless in taking the security he has stepped into his principal's shoes" 44 . Sec. 100. So, while there is a divergence of opinion as to whether an acceptance of an assign- ment by the maker of his property to the indorser operates as a waiver of demand, protest and notice, it is generally conceded that unless the assignment is of all the maker's property, or the security af- fords ample protection to the indorser, there is no such waiver 43 . And, where an assignment was to indemnify the indorser to the extent of one-fourth of the note, it was held no waiver 46 . It has been held that where the security taken was not amply suffi- cient to protect the indorser, there might be a waiv- er of notice but not of demand. But it has been Ob- served that there are no good reasons to support such hair-splitting distinctions. Sec. 101. If the security or assignment be tak- en by the indorser at the time of indorsement, its ac- ceptance could not operate as a waiver of any rights given the indorser by law; for he could only forego 44. 2 Daniel, Negot. Inst. 1134. Parsons, Notes & Bills, 571. Taylor v. French, 4 E. D. Smith, 458 (N. T.). Smith v. Ojerholm, 18 Tex. Civ. App. Ill; 44 S. W. 41. Holland v. Turner, 10 Conn. 45. Brandt v. Mickler, 28 Md. 436. Burrows v. Hanegan, 1 McClean, 309. Holman v. Whiting, 19 Ala. 708. 1 Parsons, Notes & Bills, 567-7D. 46. Watkins v. Crouch, 5 Leigh 522. THE LAW OF WAIVEB those rights by assuming the burdens of his princi- pal by an original promise as a maker or co-maker to pay the note, and this-is precluded by the fact that he signs as an indorser only, or he would make an express waiver over his indorsement. Of course, proof of an agreement between the parties that the bill or note should be paid out of the property as- signed or that the indorser should be re-imbursed therefrom, would dispense with any demand or no- tice. If the security be given or assignment made be- tween the time of indorsement and the maturity of the instrument, there is no change in the rights or liabilities of the indorser in the absence of proof of special circumstances or of an agreement that the indorser shall (pay the debt. The standing of the in- dorser toward the holder is unchanged ; and, indeed, the holder may never know of the transaction be- tween the indorser and the principal, and it would be folly to say that a party could take advantage of a condition that he knew nothing of. And, besides, unless it appear that the indorser agreed to dis- charge the instrument, the assignment made or se- curity given by the principal is clearly only for the protection of the indorser and can in no way inure to the benefit of the holder or in any manner enlarge his rights or excuse his duties. Sec. 102. If security or assignment of property of the principal is taken by an indorser after matur- ity and non-payment of an instrument, this is not a waiver of the holder's default as to demand and no- tice; for it cannot properly be said that simply by taking security the indorser intended to render him- self absolutely liable to pay the debt; but on the BILLS AND NOTES 109 other hand it must be inferred that he was only pro- tecting himself against the possibility of his future compulsory payment 47 . But if the indorser knew when he took the security or assignment that there had been no notice or demand, such circumstances might be considered on the question of waiver by the indorser of the default of the holder. Parsons says : "There is ground to contend that if an indorser takes security after maturity, this is evidence of de- mand and notice; for why should a person take these steips to secure himself unless his liability ac- tually exist?" 48 It is thought, however, that such doctrine should be applied with caution. And it should be fully proved that when taking such se- curity the indorser was well aware of his legal rights and liabilities in the matter 49 . Sec. 103. It may readily be seen from the fore- going that there is considerable conflict among the courts as to the effect to be given the taking of se- curity by an indorser from the maker as a waiver of presentment and notice. In some cases the prop- erty is taken for the express purpose of enabling the indorser to pay the note when due, and in other cases it is taken to secure the indorser as an indemn- ity. In the former case, the indorser is held to take the (place of the maker, and the necessity of present- 47. Tower v. Durrell, 9 Mass. 332. Creamer v. Perry, 17 Pick. 332. Otsego Bank v. Warren, 18 Barb. 290. May v. Boisseau, 8 Leigh 164. First Nat. B. v. Hartman, 110 Pa. St. 196 ; 1 Atl. 271. First Nat. B. v. Shriner, 110 Pa. St. 188 ; 20 Atl. 718. 48. 1 Parsons, Notes & Bills, 619. 49. See : Saunderson v. Saunderson, 20 Fla. 307. Walters v. Munroe, 17 Md. 154. 110 THE LAW OF WAIVER ment and notice is thereby waived ; but in the latter, no waiver should be implied. The giving of notice to an indorser is for the purpose of enabling him to take steps against the maker to protect -himself, and when he is amply secured the reason and the neces- sity of giving the notice are obviated. But on the other hand the indorser agrees to become liable only in the event of default in payment by the maker, and his taking security is held to be as an indemnity against his conditional liability. It has been held that if the security given the indorser be all that the maker has, such will constitute a waiver for the rea- son that the maker having nothing left, the indorser would have recourse only on the security in his hands. But on all these points the courts are in hopeless conflict, and it is impossible to deduce from them any uniform rules 50 . E. WAIVER BY CONDUCT : ; Sec. 104. In addition to the waivers of, and agreements to waive presentment, protest and notice hereinbefore dis- cussed, it may be said generally, that any conduct of an indorser calculated to put the holder, when acting with reasonable prudence, off his guard, and to induce him not to insist upon his rights and to omit these formalities, will be sufficient to constitute a waiver of these steps 51 . And the same is true 60. Jordan v. Reed, 77 N. J. L. 584; 71 Atl. 280. Selby v. Brinkley, (Tenn.) ; 17 S. W. 479. Whittier v. Collins, 15 R. I. 44 ; 23 Atl. 39. Woodbury v. Crum, 1 Biss. 284; Fed. Gas. No. 17,969. Cruger v. Llndheim, 4 Tex. App. Civ. Cas. 142; 16 S. W. 420. Beard v. Westerman, 32 Oh. St. 29. Mead v. Small, 2 Me 207 ; 11 A. D. 62. 61. Boyd v. Bank, 32 Oh. St. 526; 30 A. R. 624. Selden v. Bank, 66 Md. 488; 8 Atl. 62; 6 Cent. R. 471. BILLS AND NOTES 111 where the act of the indorser has misled the holder to the latter 's injury 52 , and of any language which is intended to and does induce the holder not to take these steps 53 . 5. CONSIDERATION FOB WAIVER : Sec. 105. When a waiver of presentment, protest and notice appears on the face of a commercial paper, or is on the paper at any place prior to indorsement, no question as to the necessity of a consideration for such waiver can be raised; for in such event the in- dorsement, 'being subsequent to the waiver, the lat- ter becomes a part of the indorser 's contract as much as his promise to pay in the event of the de- fault of the maker, and, being an integral part of the contract, the waiver is based on the same con- sideration as the other obligations of the indorse- ment. Sec. 106. But in case of a waiver after indorse- ment, the courts have not been harmonious as to the necessity of a new consideration for the waiver in cases where the question has been raised. It is no- ticeable, however, that the matter of consideration has seldom been brought before the courts in this connection. In case after case the courts have held an indorser, who has been released by the laches of the holder, to resumption of liability by his volun- tary act subsequent to his release, without anything to show that there was a new consideration, and without any intimation from the courts that they thought a consideration necessary or that the liabil- ity of the indorser was effected by its absence. 62. Robinson v. Barnett, 19 Fla. 670 ; 45 A. R. 24. 53. Souther v. McKenna, 20 R. I. 645; 40 Atl. 736. 112 THE LAW OP WAIVER Sec. 107. But it is necessary to notice the cases in which the question has been passed upon. Thus, it has been said that a subsequent promise to pay, unless supported by a consideration, is not binding upon an indorser who has been released by the laches of the holder 54 . But the decided weight of au- thority is to the contrary of this, and it is said that no consideration is necessary to make a waiver bind- ing 55 , and that whether upon the ground of waiver or of a moral obligation that forms a consideration, the consequence is undeniable that a new promise will sustain an action upon the note 56 . Sec. 108. This question of consideration was fully discussed in a Pennsylvania case 57 and the ref- erences therein made, and all sides of the matter looked into. It is said: "The indorser may waive protest after the date of maturity of the note with like effect as if done prior to that date 58 . In Barclay v. "Weaver, this court said, 'It seems, therefore, that 64. Sebree Bank v. Moreland, 96 Ky. 150; 28 S. W. 163; 29 L. R. A. 305. See: Peabody v. Harvey, 4 Conn. 119; 10 A. D. 103. Merrimack Bank v. Brown, 12 N. H. 320. White v. Keith, 97 Ala. 668; 12 So. 611. 55. Delsman v. Friedlander, 40 Oreg. 33 ; 66 Pac. 297. Matthews v. Allen, 16 Gray 594; 77 A. D. 430. Morgan v. Peet, 32 111. 281. Lockwood v. Bock, 50 Minn. 142 ; 52 N. W. 391. Woodman v. Eastman, 10 N. H. 359. Ross v. Hurd, 71 N. Y. 14 ; 27 A. R. 1. Tate v. Sullivan, 30 Md. 472 ; 96 A. D. 597. Porter v. Hodenpuyl, 9 Mich. 11. 66. Brooklyn Bank v. Waring, 2 Sandf. Ch. 1 ; 7 L. Ed. 481. U. S. Bank v. Southard, 17 JT. J. L. 473 ; 35 A. D. 521. Harrison v. Bailey, 99 Mass. 620; 97 A. D. 63. Uhler v. Farmers Bank, 64 Pa. St. 406. 67. Burgettstown Bank v. Nill, 213 Pa. St. 456; 63 Atl. 186. Cited In Joyce on Def. to Com. Paper, 538. 68. Barclay v. Weaver, 19 Pa. St. 396; 57 A. D. 661. BILLS AND NOTES 113 the duty of demand and notice, in order to hold an indorser, is not a part of the contract but a step in the legal remedy that may be waived at any time in accordance with the maxim Quilibet potest renuib- ciare juri pro se introducto.' In some jurisdictions it is held that the waiver, when made after maturity of the note, must be made with full knowledge of the holder's laches and that it requires a new consider- ation. But it is settled by numerous American au- thorities that a waiver of protest need not be sup- ported by a new consideration 59 . We know of no de- cision in this court holding that such waiver must be supported by a new consideration. The contrary rule, however, is distinctly recognized in Barclay v. Wea- ver, supra. In that case Mr. Justice Lowrie, in con- struing the contract of an indorser of negotiable paper, says : ' The most, therefore, that can be said of an indorsement of negotiable paper is that from it there is implied a contract to pay on condition of the usual demand and notice ; and that this implica- tion is liable to be changed on the appearance of circumstances inconsistent with it, whether those cir- cumstances be shown orally or in writing. But it may well be questioned whether the condition of de- mand and notice is truly part of the contract or only a step in the legal remedy upon it. If it is a part of the contract, how can it be effectually dispensed with without a new contract for a sufficient consideration, If. Neal v. Wood, 23 Ind. 523. Huhs v. Bowen, 15 la. 446. Cheshire r. Taylor. 29 la. 492. SK^KSon v, Hornton, (N. T.) ; 3 A. R . Tebbetts v. Dowd, 23 Wend. 379. Wall v. Bry. 1 La. Ann. 312. Lane v. Steward, 20 Me. 91. 114 THE LAW OF WAIVER especially after maturity of the note? Yet, there are decisions without number that a waiver of it during the currency or after the maturity of the note will save from the consequences of its omission. This could not be if it was a condition of the contract for then the omission of it would discharge the indorser both morally and legally ; and no new promise after- wards, even with full knowledge of the facts, could be of any validity. If, however, an indorsement without any other circumstances be regarded as an implied promise to pay provided the holder use such diligence that the indorser loses nothing by his neg- ligence or indulgence, then it accords with all these decisions. Then the law and not the contract de- clares the usual demand and notice to be in all cases conclusive and in some cases necessary evidence of such diligence * * * *. It (the law), there- fore, is perfectly consistent in declaring that an in- dorser is bound by a new promise, after he knows of the omission of demand aiid notice, for this is an admission that he was not entitled to it, or has not suffered for want of it. It declares demand and no- tice necessary in some cases to save the indorser from loss, and it declares that his own admissions may be submitted for them.' It is manifest, there- fore, that from the nature of the indorser 's contract, a new consideration is not required to sup-port a waiver of protest before or after maturity of the paper. ' ' 6. WHETHER WAIVER IS WITHIN STAT- UTE OF FRAUDS: Sec. 109. In some cases the question has arisen as to whether an agreement to waive presentment, protest and notice, and a promise to pay after knowledge of the laches of the holder in BILLS AND NOTES 115 regard to these legal steps amounting to a waiver are not promises to answer for the debt or default of another, and, therefore, within the statute of frauds. The better opinion is that the statute of frauds does not enter into the waiver and that it or the promise constituting it is valid though not in writing 60 . Different reasons are given for this. In one instance it was said that the indorser does not make a new promise within the statute of frauds when he promises to pay after laches on the part of the holder, because the debt is his own as well as that of the maker 61 . And, again, it is said that a waiver of demand and notice made by an indorser is not a new contract but only a waiver absolutely or in part of a condition precedent to his liability 62 . 7. EXTENT OF WAIVER: Sec. 110. A waiver of presentment is a waiver of notice, as the notice, being subsequent and dependent upon pre- sentment, must, by such waiver, necessarily be dis- pensed with 63 . And a waiver of protest is a waiver of presentment and notice of dishonor 64 . So, it is said that a waiver of presentment is a waiver of all legal steps otherwise required to charge an in- dorser 65 . 60. U. S. Bank v. Southard, 17 N. J. L. 473 ; 35 A. D. 521. Harrison v. Bailey, 99 Mass. 620 ; 97 A. D. 63. 61. Uhler v. Farmers Bank, 64 Pa. St. 406. 62. Worden v. Mitchell, 7 Wis. 161. 63. Furth v. Baxter, 24 Wash. 608 ; 64 Pac. 798. 64. Baker v. Scott, 29 Kans. 136; 44 A. R. 628. San Diego Bank v. Falkenham, 94 Gal. 141 ; 29 Pac. 866. Bradley v. Asher, 65 Mo. App. 589. Timberlake v. Thayer, 76 Miss. 76 ; 23 So. 767. 65. Hammet i>. Trueworthy, 51 Mo. App. 281. 116 THE LAW OF WAIVER Sec. 111. Where an indorser signs a note under a waiver written on the back thereof, he makes the waiver his, and is bound thereby 66 . And the same is true of all subsequent indorsers 67 ; although it lias been said that a waiver of notice written above an indorser 's signature binds him only 68 , and that where an indorser has written a waiver over his sig- nature, no other party to the instrument is bound by it unless he expressly adopts it as his own 69 . 66. Farmers Bank v. Mining Co., 129 Cal. 263 ; 61 Pac. 107T. Parshley v. Heath. 69 Me. 90; 31 A. R. 246. 67. Id. 68. Joyce, Defenses to Commercial Paper, 573. 69. Halley v. Jackson, 48 Md. 254. Jackson Bank v. Irons, 18 R. I. 718; 30 Atl. 420. Woodman v. Thurston, 8 Gush. 157. MORTGAGES 117 CHAPTER 4. MORTGAGES. 1. CHATTEL MORTGAGES Section A. Waiver of the Lien by Attachment 112 B. By Execution 116 C. By Other Acts of the Mortgagee 117 2. LftEAL ESTATE MORTGAGES A. Waiver of the Lien (1) By Suit or Judgment on Note 118 (2) Levy of Execution on Mortgaged Premises to Satisfy Mortgage Debt. ... 120 (3) Taking Other Security; Attaching Mortgaged Property, etc 126 (4) Waiver of Priority 129 B. Waiver in Foreclosures (l)Breach of Mortgage Conditions 131 (a) Non-payment of interest 132 Ob) Non-ipayment of taxes, insurance or installments of principal 135 (2) Waiver of Entry to Foreclose 137 (3) Waiver of Foreclosure Sale 141 (4) Waiver of Right to Set Aside Sale (a) By laches or delays 143 (b) Effect of redemption 145 (c) Other conduct constituting waiver 146 1. CHATTEL MORTGAGES. A. WAIVER OF THE LIEN BY ATTACH- MENT : Sec. 112. The weight of authority is to the effect that a mortgagee of personal property who attaches the mortgaged property in an action for the debt which is secured therdby waives the lien of his mortgage 70 . The reason is that when an attachment is issued a lien is created which is entirely inconsist- 70. Evans v. Warren. 122 Mass. 303. Jones, Chat. Mortg. Sec. 665. Cochrane v. Rich, 142 Mass. 15 ; 6 N. E. 781. 118 THE LAW OF WAIVER ent with and different from the lien of the mortgage, and that by electing to pursue one lien the other is waived. Further, the mortgagor has no attachable interest in the property so long as the mortgage ex- ists, as the legal title is in the mortgagee subject to the equity of redemption still remaining to the mort- gagor, which is not attachable except under statu- tory provision therefor 71 . Sec. 113. And this rule holds good whether or not the attaching plaintiff knew that the property attached was the same as that covered by the mort- gage and where he persisted to judgment with the attachment 72 . So, where a creditor brings suit against his debtor and sues out a writ of attachment, but before levying the same learns that the debtor's property is covered by a chattel mortgage, and upon receiving such information buys the mortgage debt and has the mortgage assigned to himself, and there- after causes such property to be seized under the at- tachment, he thereby waives his lien under the chat- tel mortgage; and in case the attachment is dis- charged the creditor cannot maintain replevin to re- cover possession of the property so as to foreclose his mortgage, for the reason that the mortgage lien is waived by the attachment of the property covered thereby 73 . 71. Evans v. Warren, supra. Cox v. Harris. 64 Ark. 213 ; 41 S. W. 426 ; 62 A. S. R. 187. Whitney v. Farrar. 51 Me. 418. Dyckman v. Sevatson, 39 Minn. 132 ; 39 N. W. 73. Jennings v. McElroy, 42 Ark. 236; 48 A. R. 61. 72. Cox v. Harris, supra. 73. !Dix v. Smith. 9 Okla. 124 ; 60 Pac. 303 ; 50 L. R. A. 714. MOETGAGES 119 Sec. 114. The effect of the attachment by the mortgagee is the same whether the attachment is for the debt secured by the mortgage, or for an entirely different one ; for the like reasoning applies in that the two liens are inconsistent and cannot be pursued at the same time 74 . For it has been said that 'by levy- ing the writ of attachment the mortgagee puts the property into the custody of the law, and it would be inequitable to permit him to set up his mortgage to defeat the custody of the law after another credi- tor has procured a subsequent attachment against the same property 75 . So, if the mortgagee give a receipt to the attaching officer 78 , or accept the trust as keeper of the property after it has been attached 'by another creditor 77 , he cannot avoid liability by showing that his claim exceeds the value of the prop- erty, or that the attachment lien was lost by any act of his. Sec. 115. Some cases, however, hold opposite to the foregoing and declare the mortgage lien not waived by an attachment as in the cases hereinbe- fore referred to 78 . But the better reasoning is in support of the other doctrine. B. BY EXECUTION: Sec. 116. Where a mortgagee obtained a judgment against the mortga- gor for the mortgage debt and caused execution to 74. Haynes v. Sanborn, 45 N. H. 429. MX v. Smith, supra. 75. Cobbey, Chat. Mortg. Sec. 746. 76. Drew v. Livermore, 40 Me. 266. 77. Mores! v. Swift, 15 Nev. 215, cited in Cobbey, Chat. Mortg. Seo. 746. 78. Bryam v. Stout, 127 Ind. 196; 26 N. E. 687. Webster, etc. Co. v. Losey, 108 la. 687 ; 78 N. W. 78. 120 THE LAW OF WAIVEB be levied on the property covered, the mortgagor brought an action of trespass against the mortgagee and the officer who sold the 'property under execu- tion, and the court held that the lien of the mortgage had been waived 'by the execution and that the mort- gage was no defense to the action of trespass 79 . This doctrine, too, is based upon the proposition that title to the mortgaged property is in the mortgagee and that by the levy of execution he forbears to exercise his right created by such title and reinvests title in the mortgagor so as to defeat the lien of the mort- gage 80 . But if a portion of the property has been set off to the debtor as exempt, it has been held that the levy of execution does not waive the mortgage lien on that portion so set aside as exempt 81 . But no such waiver occurs by levy of execution where the levy is abandoned and the goods returned to the mortgagor ; and the doctrine of waiver of the mortgage lien by issuance and levy of execution and sale of the mortgaged property thereunder has been denied entirely 82 . O. BY OTHER ACTS OF THE MORTGA- GEE : Sec. 117. If a mortgagee of chattels author- izes his agent to sell the mortgaged property and de- posit the proceeds in a bank to be applied on the mortgage debt, and a sale is made under such au- thorization, the lien of the mortgage does not attach 79. Kimball v. Marshall, 8 N. H. 291. 80. Thurber v. Jewett, 3 Mich. 295. Exline v. Lowery, 46 la. 556. Woolner v. Levy, 48 Mo. App. 469. 81. Barchard v. Kohn, 157 111. App. 579; 41 N. B. 902; 29 L,. R. A. 803. 82. Conway v. Wilson, 44 N. J. Eq. 457 ; 11 Atl. 734. MORTGAGES 121 to the proceeds and they are subject to attachment by other creditors of the mortgagor 83 ; or if one hold- ing a chattel mortgage authorize the mortgagor to sell the property at private sale, and a sale is made, such facts operate as an implied waiver of the mort- gage lien whereby the mortgage is defeated 84 . And if the mortgagee authorize a sale of part of the mort- gaged property, his lien is waived as to the part sold, but not as to the other 85 . But it has been held that the mortgagee does not waive his lien under the mortgage by remaining si- lent when informed that part of the property had been disposed of by the mortgagor 86 , nor even by failing to speak when the transfer was executed and read in his presence 87 ; as in such case he must ex- pressly authorize such transfer or his lien is not waived. So, the receipt by a mortgagee of part of a mortgage deibt from a decedent's estate is not a waiver of the mortgage lien as to the balance, even though the whole de'bt was proved against the estate 88 . 83. Maier v. Freeman, 112 Cal. 8 ; 44 Pac. 357 ; 53 A. S. R. 151. 84. Peterson v. St. Anthony Co., 9 N. Dak. 55; 81 N. W. 59; 81 A, S. R. 528, citing: Hogan v. Atl. Elev. Co., 66 Minn. 344; 69 N. W. 1. Roberts v. Crawford, 54 N. H. 532. 85. Bamet v. Fergus, 51 111. 352; 99 A. D. 547. Ogden v. Stewart, 29 111. 124. Patterson v. Taylor, 15 Fla. 336. 86. Patterson v. Taylor, supra. 87. Rlley v. Conner, 79 Mich. 497 ; 44 N. W. 1040. 88. Schuelenburg v. Martin, 11 McCrary, 548 ; 2 Fed, 747. 122 THE LAW OF WAIVER 2. REAL ESTATE MORTGAGES. A. WAIVER OF THE LIEN (1) BY SUIT OE JUDGMENT ON NOTE : Sec. 118. In dealing with waivers of the lien of a mortgage on realty, it is well to remember that the mortgage does not secure a note or bond, 'but that it secures an indebtedness of which the note or 'bond is evidence ; and that the lien of the mortgage is not dis- charged or lessened by any change or modification of the form of the indebtedness or in the time of its payment, but continues till the debt is paid or ex- pressly discharged or the security abandoned in one of the modes to be pointed out in the succeeding pages. Sec. 119. A mortgagee of realty has several remedies which he may pursue at his election for col- lection of the debt secured, and subject to a few ex- ceptional instances, he may attempt one method, and if that fail he will not thereby be barred from his right to proceed according to another. Thus, he may recover a judgment upon the secured debt at law, and such will not constitute a waiver of his mortgage lien, and if he fail to realize on his judgment he may maintain foreclosure proceedings on the mortgage 89 . 89. Jones, Mortg. Sec. 924. Cullum v. Bank, 23 Ala. 797 ; 37 A. D. 725. Oliphant v. Eckerly, 36 Ark. 69. Bolles v. Chauncey, 8 Conn. 389. Citizens Bank v. Dayton 116 111. 267; 4 N. E. 492. Pouder v. Ritzinger, 102 Ind 571 ; 1 N. E. 44. Heively v. Matteson, 54 la. 505; 6 N. W. 732. Parkhurst v. Cammings, 56 Me. 155. Sledge v. Obenchaln, 58 Miss. 670. Bank of Utlca v. Finch, 3 Barb. 293 ; 49 A. D. 175. Nightingale v. Chaffee, 11 R. I. 609. Stimpson v. Bishop, 82 Va. 190. Taber v. Hamlin, 97 Mass. 489 ; 93 A. D. 113. Bunker v. Barren, 79 Me. 62; 8 Atl. 253; 1 A. S. R. 282. MORTGAGES 123 Such actions are, of course, different, as one is a per- sonal and the other a real action, but they are not so inconsistent as to make an election to proceed with one a waiver of the other 90 . And if an execution be issued upon the judgment, the lien of the mortgage continues till the execution is satisfied. The same is true where the judgment is for only a part of the secured debt or for only a part of the secured notes 91 . (2) LEVY OF EXECUTION ON MORT- GAGED PREMISES TO SATISFY MORTGAGE DEBT : Sec. 120. It has been seen from the above that the mortgagee may secure a judgment on the mortgage debt without reference to the mortgage. But there is a decided contrariety of opinion among the courts as to the right of a mortgagee to levy ex- ecution upon the mortgaged premises and sell same for the mortgage debt, and the effect to be given such sale if made. Sec. 121. On the one hand, it is said that a mortgagee cannot upon a judgment recovered for the mortgage debt levy an execution therefor upon the mortgaged premises 92 . It is well to be remembered 90. Priest v. Wheelock, 58 111. 114. Darst v. Bates, 51 111. 439. Jenkinson v. Ewing, 17 Ind. 505. Thornton v. Pigs, 24 Mo. 249. Lalane v. Payne, 42 La. Ann. 152; 7 So. 481. Torrey v. Cook, 116 Mass. 163. Shearer v. Mills, 35 la. 499. Flanagan v. Westcott, 11 N. J. Eq. 284. Cissna v. Haines, 18 Ind. 496. 91. Applegate v. Mason, 13 Ind. 75. Brumagin v. Chew, 37 Ala. 354. Kempner v. Comer, 73 Tex. 196; 11 S. W. 194. 2. Powell v. Williams, 14 Ala. 476; 48 A. D. 105. Barker v. Bell, 37 Ala. 354. Young v. Ruth, 55 Mo. 515. Carpenter v. Bowen, 42 Miss. 28. Washburn v. Goodwin, 17 Pick. 137. 124 THE LAW OF WAIVEB in this connection that there is a distinction between a levy of execution upon the mortgaged premises,, and a levy upon the mortgagor's interest or equity of redemption therein. In some states such sale of the equity of redemption is prohibited by statute 9 *. And in California it is .provided that an action to foreclose the mortgage is the only method allowed for the recovery of the mortgage debt. So there the question does not arise. It may readily 'be seen that the courts have no high regard for the proposition of selling the redeeming interest of the mortgagor for the mortgage debt; and even where such sale is sanctioned at all the greatest safe-guard possible is thrown around the mortgagor to prevent the working of injustice 94 . But it was said in an early New York case that "the creditor who takes a mortgage to se- cure an indebtedness by bond or otherwise has three remedies, either of which he may pursue or all of which he may pursue until his debt is satisfied. He may bring an action of debt upon the bond, or he may put himself in possession of the rents and pro- fits of the land mortgaged, or he may foreclose the equity of redemption and sell the land to satisfy the debt. In this case the creditor sues on the bond and obtains judgment and execution, and the execu- tion strictly reaches only to the remaining interest of the mortgagor in the land. It reaches only to the equity of redemption" 95 . This doctrine was later 93. Deleplalne v. Hitchcock, 6 Hill 14 (N. Y.). Preston v. Ryan, 45 Mich. 174. Mitchell v. Rlngle, 151 Ind. 16; 50 N. E. 30; 68 A. S. R. 212. 94. Simpson v. Simpson, 93 N. Car. 373. Baldwin v. Jenkins, 23 Miss. 206. Bonnell v. Henry, 13 How. Pr. 142. Preston v. Ryan, 45 Mich. 174. 95. Jackson v. Hull, 10 Johns. 481 (N. Y.). MORTGAGES 126 (Criticised in the same state 96 , and thereafter a stat- ute enacted prohibiting such sales 97 . And many other authorities hold that the equity of redemption of the mortgagor cannot 'be sold on execution issued upon a judgment for the mortgagee debt 98 . Sec. 122. But there is a rule 'better than either of those above adverted to, producing justice equally to the mortgagor and the mortgagee. The rule is that a mortgagee may sue the mortgagor at law for the mortgage debt, procure judgment therefor, ob- tain execution, levy same upon the mortgaged premi- ses and conduct the proceedings to s-ale as in other cases under execution. But in such action the mort- gagee waives the lien of his mortgage and is barred by his own act from further proceeding under it. The reasons for this rule have been clearly stated: "The debt is the principal thing. The mortgage is designed to secure the ultimate payment of it to the creditor. But if he pleases to waive that security and proceed to collect the debt in the ordinary pro- cess of the law, it is not for the debtor to complain. He is subjected to no illegal burden. The accepting a mortgage does not impose upon the creditor the ne- cessity of giving credit for the term of three years beyond that stipulated for in the principal contract. The relation of the parties is changed by the levy. The levying creditor can no longer be considered en- 96. Tice v. Annin, 2 Johns. Ch. 125. 97. N. Y Code Civ. Proc. 1877, Sec. 1432. 98. Myrover v. French, 73 N. Car. 609. MoNair v. O'Fallon, 8 Mo. 188. Davis v. Hamilton, 50 Miss. 218. Funk v. McReynold. 33 111. 49. Crane v. March, 4 Pick. 131. 126 THE LAW OF WAIVER titled under his mortgage. He is to foe considered as holding nnder his levy, and his title must depend upon the regularity of his proceedings. He can claim no priority over other attaching creditors or intervening incumbrancers 'by reason of Ms mort- gage" 99 . Sec. 123. This doctrine has been regarded as providing another method of foreclosing the mort- gage with the same rights of redemption as in ordi- nary foreclosures 100 . But it is not a summary meth- od of foreclosure. The lien of the mortgage is a right existing to the mortgagee the same as any other contractual right, and this he has the right of insisting upon or waiving as he may choose. Pur- suing a course of conduct inconsistent with an in- tention to rely upon the lien is a waiver of it. So that causing the mortgaged property to be levied upon and sold under execution on a judgment for the mortgage debt is a voluntary abandonment of the mortgage lien or a waiver thereof, and will ipso facto discharge the mortgage, and the purchaser takes the premises freed from the mortgage lien 1 . To deny the mortgagee the right to so waive his mort- gage lien would be to deny him the privilege of fore- going a benefit inuring solely to himself, a restric- tion unknown to any other class of contracts 2 . 99. Crooker v. Frazier, 52 Me. 405. 100. Cottingham v. Springer, 88 111. 90. Sharts v. Await, 73 Ind. 304. 1. Freeby v. Tupper, 15 Oh. 467. Pierce v. Potter, 7 Watts 475. Fosdlck v. Risk, 15 Oh. 84 ; 45 A. D. 562. Lord v. Crowell, 75 Me. 399. 2. Flthlan t>. Corwln, 17 Oh. St. 118. McLure v. Wheeler, 6 Rich. Eq. 343. MORTGAGES 127 Stec. 124. Even in those states denying a mort- gagee the right to levy upon and sell the mortgaged premises upon an execution issued on a judgment for the mortgage debt, it said that the mortgagor's equity of redemption may be levied upon and sold for another debt in favor of the mortgagee other than the mortgage debt 3 . It is hard to understand why the levy and sale should be allowed without af- fecting the mortgage lien if the mortgagee is not to be permitted to waive the mortgage lien and proceed against the premises the same as any other creditor. And it is held in those states where statutory provisions prohibit a sale of the equity of redemp- tion on execution for the mortgage debt, that such execution may be levied upon any other property of the mortgagor 4 , in effect a holding that the mortga- gee may abandon his lien for the purpose of proceed- ing against other property of the mortgagor, but prohibiting his waiver of the lien in order to proceed otherwise against the particular property mort- gaged. (3) TAKING OTHER SECURITY, AT- TACHING MORTGAGED PROPERTY, ETC. :- Sec. 125. It has herein been seen that no indulgence of the mortgagor by the mortgagee in the way of changing the time or mode of payment or the form of the debt is to be construed as a waiver of the mortgage lien. It remains the same lien as to third Gushing v. Kurd, 4 Pick. 253 ; 16 A. D. 335. See: Andrews v. Fiske, 101 Mass. 422. Roosevelt v. Carpenter, 28 Barb. 426. Simmons Hdw. Co. v. Brokaw, 7 Neb. 405. Tucker v. McDonald, 105 Mass. 423. 128 THE LAW OP WAIVER parties as well as to the mortgagor through any such changes, so that even the taking of a new mortgage does not affect it where the rights of the original mortgagee are expressly reserved 5 . And the taking of a second mortgage for the same debt is not a waiver of the lien of the first 6 , nor is the accepting of personal security 7 . So where the mortgagor con- veyed the legal title in trust to pay a prior mortgage, the mortgagee did not waive his lien under the mort- gage by accepting interest from the trustee 8 . And, unless there exist facts amounting to an equitable estoppel 9 , the lien will not be waived by the taking of additional security of whatever character 10 . Sec. 126. But the above doctrine must not be carried too far, for the effect to be given to such transaction will be governed largely by the intent of the -parties as gathered from all the circumstances surrounding their dealings. Thus, it is said that in the absence of fraud, accident or mistake the release of a first mortgage and the acceptance of a second in its stead is a waiver of the lien of the first mort- 6. Ames v. New Orleans Co., Fed. Gas. No. 329. 6. Burdett v. Clay, 47 Ky. 287 (8 B. Mon.). Heively v. Matteson, 54 la. 505 ; 6 N. W. 732. Frulck v. Branch, 16 Conn. 260. Walter v. Walters, 73 Ind. 425. Brinkerhoff v. Lansing, 4 Johns. Ch. 65 ; 8 A. D. 511. Geib v. Reynolds, 35 Minn. 331; 28 N. W. 923. 7. Id. 8. Nelson v. Radliff, 72 Miss. 656 ; 18 So. 487. 9. Kans. City Assoc. v. Mastln, 61 Mo. 43S. 10. Blrrell v. Schle, 9 Cal. 104. Bank v. Tarleton, 23 Miss. 173. Byers v. Fowler, 14 Ark. 86. Clssna v. Haines, 18 Ind. 496. Fireman's Co. v. Wilkinson, 35 N. J. EQ. 180. Flower v. Elwood, 66 111. 438. N. H. Bank v. Willard, 10 N. H. 210. MORTGAGES 129 gage and extinguishes it forever as to intervening claimants 11 . And of course an express understand- ing that the taking of a new mortgage for the same debt shall have the effect of a complete discharge of the first mortgage will be carried out according to the intention of the parties and the prior lien will C. Liverymen and Agisters 154 2. ATTORNEYS' LIENS 155 3. MECHANICS' LIENS A. In General 157 B. By Taking Debtor's Note 1,58 C. By Drawing Draft 163 D. By Taking Mortgage 164 E. By Taking Collateral Security 166 F. iBy Personal Judgment, Attachment or Exe- cution 168 G. Miscellaneous Waivers 170 4. VENDOR'S LIENS 172 1. POSSBSSOEY LIENS: Sec. 148. There are many liens that, as a condition of their validity, require that the lien-claimant retain possession of the property upon which the lien is asserted. In fact all common-law liens have possession as their basic element, and this element once lost, the lien is of no more force or effect. This is true of the lien of a carrier, an inn-keeper, a liveryman, an agister or a warehouseman. And in any of such cases there is one rule to be applied that will determine the status of the lien if possession of the property be volun- tarily surrendered, any right to a lien thereon is thereby waived 94 . 94. JKgan v. Spruce, 41 Fed. 830. Ferrlss v. Schreiner, 43 Minn. 48 ; 44 N. W. 1083. Hale v. Barrett, 26 111. 195 ; 79 A. D. 367. Gregg v. 111. Cent. Ry., 147 111. 550 ; 35 N. E. 343 ; 37 A. S. R 231. 148 THE LAW OF WAIVES A. CARBIEB'S : Sec. 149. A common car- rier labors under the obligation to receive and trans- port any goods that may be offered, and, with certain reservations, is liable for their safety until their de- livery. By accepting the obligations and duties of a carrier, such carrier is not invested with any prop- erty rights in the goods transported ; such property rights necessarily rest some other place. But the carrier is given the right of control over the goods till it is paid a reasonable compensation for its services, and the right of control or right of possession is the lien with which the carrier is endowed by law, the right to retain the goods till carriage charges thereon are paid. It matters not who consigns the property or who is responsible for the freight, the right to the lien runs against the true owner unless he has been defrauded in the shipment 95 . Sec. 150. But in order to avail himself of. the lien, a carrier must retain actual possession of the goods ; for the lien is its security for payment of the carriage charges, and by destroying the foundation of the lien in relinquishing possession of the proper- ty, it is deemed to have elected to look to the person- al responsibility of the owner or consignee and in such election to have abandoned the security given it by law. In other words, the lien of a carrier of 'goods is waived by a voluntary relinquishment of possession without requiring payment of carriage charges 96 . But it is evident that the relinquishment 95. Robinson v. Baker, 5 Gush. 137; 61 A. D. 64. 96. Gring v. Lumber, 38 Fed. 528. Wingard v. Banning, 39 Cal. 543. Bigelow v. Heaton, 4 Denio 496. LIENS 149 of possession must be voluntary, for if it be obtained through subterfuge or by fraudulent means, the lien will be held not waived waiver in this as in other cases being induced by an intentional act or by con- duct so inconsistent with any other intention as to cause an intended surrender to be implied 97 . And it will be seen that the surrender of possession must be with the intention that the carrier will part with his interest in the goods delivered, and it has therefore been held that where possession was relinquished under the belief that the carriage charges would be paid at the time the lien was not lost 98 . And the car- rier may make any kind of agreement with the owner of goods as to conditions to be annexed to a surren- der of possession, or that such surrender shall not operate as a waiver, and any such agreement will be given effect by the courts and the lien sustained 99 . But if the delivery be voluntary and unconditional, the lien will be waived no matter what motives in- duced the surrender of possession 100 . S'ec. 151. While a carrier's lien depends upon possession for its validity, it does not follow that the mere surrendering of possession is the only means through which a waiver of the lien occurs. Such waiver will be impli ed if the carrier attach for freight Reineman v. Ry. Co., 51 la. 338 ; 1 N. W. 619. Gregg v. HI. Cent. Ry., 147 111. 550 ; 85 N. E. 343. Lake Shore Ry. v. Ellsley, 85 Pa. St. 283. Bailey v. Quint, 22 Vt. 474. 91. Geneva, etc. Ry. v. Sage, 35 Hun 95 (N. T.). Bigelow v. Heaton, supra. 98. 151 Tons Coal, 4 Blatchf. 368. $9. The Eddy, 5 Wall. 481 (IT. S.). 100. Sears v. Wills, 4 Allen 212. 150 THE LAW OF WAIVER charges the property upon which the lien is claimed 1 , or levy an execution upon it, or put its refusal to de- liver upon the ground that the goods are not in its possession at the place where demand is made 2 , or negligently damage the goods in an amount in excess of the charges 3 ; and the lien is waived where, be- tween the carrier and the consignor, there is a stipu- lation for payment of freight at a place different from that at which the goods were to be delivered, for such an agreement must necessarily present the inference that payment was not intended to be de- manded as a condition precedent to delivery 4 . Sec. 152. And a waiver occurs if the time ar- ranged for payment of transportation charges be inconsistent with the existing of a lien depending, as that of a carrier does, upon possession for its valid- ity. Thus, if credit for freight be given to a period subsequent to the time when the goods are to be de- livered, the lien is thereby displaced 5 ; and the same result follows the taking of notes or other security payable after the time arranged for the delivery of the goods transported 6 . But the taking of notes for the charges is not a waiver of the right to a lien if the notes mature prior to the time for delivery of the goods carried. 1. Wingard v. Banning, 39 Cal. 543. 2. Adams Ex. Co. v. Harris, 120 Ind. 307; 16 A, S. R. 315. 3. Dyer v. Grand Trunk Ry., 42 Vt. 441 ; 1 A. R. 350. 4. Raymond v. Tyson, 17 How. 53 (U. S.). 6. Pinney v. Wells, 10 Conn. 104. Chandler v. Belden, 18 Johns. 157 ; 9 A. D. 193. Plckman v. Woods, 6 Pick. 241. 6. Bird of Paradise, 5 Wall. 545 (U. S.). LIENS 151 B. INN-KEEPERS: Sec. 153. A Hen is re- served by law in favor of inn-keepers and boarding- house keepers upon the property of their guests turn- ed over to them, for charges of entertainment. But this lien depends for its validity upon the keeper's re- taining possession of the property till the charges are paid, for his loss of possession is the loss of his lien unless the goods were taken from him through the fraud of the guest, in which event the lien is not lost nor released 7 . It is of no moment whether the charges be paid or not, the question whether such a lien has 'been released or waived must depend upon the proposition whether or not the keeper has volun- tarily relinquished the goods without first demand- ing payment of the charges. If this proposition be shown in the affirmative, then the lien is waived. But a waiver may also occur by the keeper's taking security for his charges inconsistent with the con- tinued existence of the lien. And it may also be shown by an agreement for payment at a future time which in itself is preclusive of an intention that the lien shall continue. C. LTOEiRYMEN AND AGISTEBS : Sec. 154. The rules announced are equally applicable where the lien is that of a liveryman or agister upon an animal cared for. But more difficulty is encount- ered in applying the rules ; for, while the voluntary surrender of possession of the animal constitutes a waiver of the lien, it is not always easy to declare what is such a surrender of possession as will con- stitute waiver. Thus, the keeper of a horse may per- 7. Manning v. Uollenbeck, 27 Wis. 202. 152 THE LAW OF WAIVER mit the owner to take the horse for a temporary use with the implied understanding that it will be re- turned, and in such event the lien will be held not waived, for the necessary intention, either express or implied, is lacking 8 . But the effect is otherwise if possession be delivered to the owner for more than a temporary use or without an understanding that the animal is to be returned to the keeper 9 . 2. ATTORNEYS 'LIENS: Sec. 155. In some states an attorney has a lien against a judgment pro- cured for his client for his fees earned in the case. The lien cannot be divested except by some act of the attorney himself or of some one with his knowledge and approval. But, like any other lien, it may "be lost or waived, and a waiver will be construed from any act of the attorney indicating an intention not to rely upon or enforce the lien. It may be waived by any transaction or arrangement for payment by which the attorney looks to other security or mode of payment. But the intention that the lien shall no longer exist should be made to clearly appear or a waiver should not be inferred 10 . The lien is not waived by a delay of several years to collect the de- mand if there is no negligence on the part of the at- torney, and the debtor has notice of the lien 11 ; nor will th* fact that the judgment has become dormant 8. Wall v. Long, 2 Ind. App. 202; 28 N. E. 101. Young v. Klmb^l, 23 Pa. St. 193. Caldwell v. Tutt, 10 Lea 258 ; 43 A. R. 317. 9. Seebaum v. Handy, 46 Oh. St. 560; 22 N. E. 869. Ferris v. Schreiner, 43 Minn. 48; 44 N. W. 1083. Paplneaw v. "Wentworth, 136 Mass. 543. Estey v. Cooke, 12 Nev. 276. 10. Rentek v. Ludlngton, 16 W. Va. 378. 11. Stone v, Hyde, 22 Me. 318. LIENS 153 &' - . Clark v. Union Mut. Co., 40 N. H. 333 ; 77 A. D. 721. 2 Wood, Fire Ins. Sec. 385-8. May, Insurance, Sec. 140. 89. Id., citing: Lynchburg Co. v. West, 76 Va. 575 ; 44 A. R. 177. Higgins v. Phoenix Co., 74 N. Y. 6. Eggleston v. Council Bluffs Co., 65 la. 308; 21 N. W. 851. Guardian Co. v. Hogan, 80 111. 35; 22 A. R. 180. Sherman v. Madison Co., 39 Wis. 104. Patten v. Merchants Co., 40 N. H. 375. Breckenridge v. Am. Cent. Co., 87 Mo. 63. Am. Co. v. Mahone. 56 Miss. 180. Mass. Ins. Co. v. Robinson, 98 111. 324. Thomas v. Hartford Co., 20 Mp. App. 150. Home Ins. Co. v. Lewis, 48 Tex. 622. 264 THE LAW OF WAIVES Sec. 267. These views are concurred in by the Supreme Court of the United States. It is there said that insurance companies holding out to the public certain parties as their agents, furnishing them blanks and advertising matter, permitting them to countersign and deliver policies, urging them on to increased activities, and paying them large commissions, should not be released from re- sponsibility to the parties with whom they transacted business for the acts and declarations of the agent within the scope of his employment. "It is yet true that reports of judicial decisions are filled with ef- forts of these companies, by their counsel, to estab- lish the doctrine that they can do all this, and yet limit the responsibility of these agents to the simple receipt of the premium and delivery of the policy; the argument being that as to all other acts of the agent he is the agent of the assured. This proposi- tion is not without support in some of the earlier decisions on the subject ; and, at a time when insur- ance companies waited for parties to come to them to seek insurance, or to forward applications on their own motion, the doctrine had a reasonable foundation to rest upon. But to apply such a doc- trine in its full force to the system of selling policies through agents, which we have described, would be a delusion and a snare, leading, as it has done in numerous instances, to the grossest frauds of which the insurance companies receive the benefit, and the parties supposing themselves insured are the vic- tims. The tendency of the modern decisions in this country is steadily in the opposite direction. The powers of the agent are prima facie co-extensive with the business intrusted to his care, and will not be narrowed by limitations not communicated to the INSURANCE 265 person with whom he deals." 90 An apparent lean- ing away from the emphatic statements of this case was manifested by the same court in a later decision. But it does not appear that the court abandoned its earlier position, for in the later case the case rested on the point that the assured had signed an applica- tion, without reading it and it subsequently occurred that it contained false statements unknown to the applicant. And the court held, in accordance with established rules of evidence, that parol evidence could not be admitted to vary or contradict the terms of the written application, and more particularly rested the case on the fact that the power of the agent was limited by a statement in the application which was brought to the knowledge of the insured 91 . The great mass of authority is as above stated, and the same principle is set forth by Judge Cooley as follows: "It cannot be tolerated that one party shall draft the contract for the other, and receive the consideration, and then repudiate the contract on the ground that he had induced the other party to sign an untrue representation, which was, by the very terms of the contract, to render it void * * * When an agent, who at the time and place is the sole representative of the principal, assumes to know what the principal requires, and after being fur- so. Union Mut. Co. v. Wilkinson, 80 U. S. 13 Wall. 222 ; 20 L. Ed. 617. Followed in Baker v. Home Co., 64 N. Y. 650. Kausal v. Minn. Co., 31 Minn. 17 ; 16 N. TV. 430 ; 47 A. S. R. 776. Planters Co. v. Myers, 55 Miss. 504; 30 A. R. 526. Rissler v. Am. Cent. Co., 150 Mo. 375 ; 51 S. W. 757. Johnson v. Dakota Co., 1 N. Dak. 179 ; 45 N. W. 803. Kister v. Lebanon Co., 128 Pa. St. 553 ; 18 Atl. 450 ; 15 A. S. R. 699 ; 5 L,. R. A. 648. 91. N. Y. Life Co. v. Fletcher, 117 U. S. 529; 29 L. Ed. 934. 266 THE LAW OF WAIVEB nished all the facts, drafts a paper which he declares satisfactory, induces the other party to sign it, re- ceives and retains the premium moneys, and then de- livers a contract which the other party is led to be- lieve, gives him the indemnity for which he paid his money, we do not think the insurer can be heard in repudiation of the indemnity, on the ground of his agent's unskillfulness, carelessness or fraud." 92 Sec. 268. So, from the adjudications this prin- ciple is deduced : The agent taking applications for insurance, using the company's blanks, forwarding the applications, delivering policies and receiving premiums is the agent of the insurer and not of the insured, and the insurer is, therefore, liable for the acts of its agent in the apparent scope of his em- ployment, and he may bind it by his acts, represen- tations or waivers. B. WHO ABE AGENTS WHO MAY WAIVE BIGHTS Sec. 269. The extent to which an agent is permitted to act is usually the test by which to de- termine whether he can bind his principal by a waiv- er of conditions, forfeitures or restrictions. If he is permitted by the insurer to solicit insurance, fill in and forward applications, receive and deliver, or countersign and deliver policies and collect premi- 92. Aetna Co. v. Olmstead, 21 Mich. 251; 4 A. R. 483. Pac. Mut. Co. v. Snowden, 58 Fed. 342. N. J. Mut. v. Baker, 94 U. S. 610; 24 L,. Ed. 268. Eames v. Home Co., 94 U. S. 621 ; 24 L. Ed. 298. Continental Co. v. Chamberlain, 132 U. S. 304 ; 33 L. Ed. 341. Knickerbocker Co. v. Trefz, 104 U. S. 197 ; 26 L. Ed. 708. American Co. v. Mahone, 88 U. S. 21; 21 Wall. 152; 22 L. Ed. 593. Equitable Co. v. Hazlewood, 75 Tex. 338 ; 12 S. W. 621 ; 7 L. R. A. 217. Flynn v. Equitable Co., 78 N. Y. 568; 34 A. R. 561. INSURANCE 267 urns therefor, and thus attend to the business of his employer, such employer is bound by his waivers to the same extent as if the principal were acting. The tendency of modern authorities is against making re- strictions in the policy upon an agent's authority conclusive upon the assured, and that the company or any agent with general or unlimited powers, clothed with an actual or apparent authorization, may either orally or in writing, waive any written or printed condition in the policy, notwithstanding such restric- tions, and many cases apply this rule, even though the policy provides that a distinct, specific agreement shall be endorsed thereon, or otherwise prescribes a particular mode of waiver or that only certain per- sons may waive, and there would 'be no valid reason why, if the agent could waive the restrictions in the first case, he may not in the latter ; for such restric- tions are declared to be ineffectual to limit the legal capacity of the company to bind itself by waiving conditions of a policy through an agent acting within the real or apparent scope of his employment 93 . 'Sec. 270. Attempts have frequently been made by the courts to create a distinction between the pow- ers of a general and a local agent in applying the principles under consideration. But the difficulty arising in such case is to arrive at a proper defini- tion of the terms general and local. It is customary to speak of a local agent as one whose district of operations is circumscribed, and a general agent as one who has a wider field or territory under his sup- ervision. And yet, an agent may be restricted to 93. I Joyce, Insurance, 439. 268 THE LAW OF WAIVEB work in only one small town, and his powers still be as great as if he covered the whole state. And one us- ually denominated a general agent may be absolute- ly denied the power to waive conditions, stipulations or forfeitures, while he who is called a local agent may have such power absolutely. And the mere fact of having a high title in an insurance company should not and has been held not to make any difference where the prohibition in a policy was against waiv- ers by all agents 94 . This, however, has been decided differently, in other states, perhaps under facts which were not altogether similar, where it was held that the president, vice-president and secretary 95 , the assistant-secretary, superintendent and general manager 96 , were not to be included in the same cate- gory as other agents, and that they could bind the company by their acts irrespective of the provisions of the policy. No forceful reason presents itself for such a classification and differentiation of agents. The classification should be based on the character of the duties performed by the agent whose acts are in question. The highest official in an insurance com- pany may never have performed a single act in the real transaction of the company's business; and it would be absurd to say that he could step in in a particular case and authorize acts in direct contra- vention of the terms of the policy, when the public knew that it was not customary for him to exercise 94. O'Leary v. Mer. M. Co., 100 la. 173 ; 69 N. W. 420 ; 62 A. S. R. 555. Taylor v. State Co., 98 la. 521 ; 67 N. W. 577 ; 60 A. S. R. 210. 8. Wood, Fire Insurance, 500. Beal v. Park Ins. Co, 16 Wis. 241; 82 A. D. 719. 9. Parker v. Rochester Co., 162 Mass. 479; 39 N. E. 179. Hunt v. State Co.. 66 Neb. 121 ; 92 N. W. 921. Russell v. Prudential Co., 176 N. Y. 178; 68 N. E. 252; 98 A. S. R. 656. No. As. Co. v. Bld'g. Assoc., 183 U. S. 308; 22 Sup. Ct. R. 133; 46 L. Ed. 213. 109. Farnham v. Phoenix Co., 83 Cal. 246; 23 Pac. 869; 17 A. S. R. 233. Hoge v. Dwelling: H. Co., 138 Pa. St. 66 ; 20 Atl. 939. Howard Co. v. Owen's Adm., 14 Ky. L. R. 881 ; 21 S. W. 1037. Hahn v. Guardian Co., 23 Oreg. 576; 32 Pac. 683; 37 A. S. R, 709. INSURANCE 271 0. CLERKS : Sec. 272. According to the or- dinary course of business, insurance agents frequent- ly employ clerks to assist them. In many cases they could not transact their business if obliged to attend to all details in person. And these clerks can bind their principals in any of the business they are au- thorized to transact. An insurance agent can author- ize his clerk to contract for risks, to deliver policies, to collect premiums, and to take payment for pre- miums in cash or securities, and to give credit for premiums or to demand cash ; and the act of the clerk is in all such cases the act of the agent, and binds the company just as effectually as if it had been done by the agent in person. The maxim of dele- gatus non potest delegare does not apply in such a case 1 . So, a clerk may waive conditions and provi- sions in an insurance policy to the same extent as the agent, his employer, could do 2 . Soliciting insurance and bringing the applications to the agents who fin- ally pass upon them and determine whether or not to issue a policy, makes the solicitor the clerk of the agents and not an insurance broker ; therefore, oral notice to such clerk of additional insurance contrary to the terms of a policy was. notice to the company 3 . Liverpool Co. v. Richardson, 11 Okla. 585 ; 69 Pac. 938. Royal Neighbors v. Bowman, 75 111. App. 566. Gal. Co. v. Gracey, 15 Colo. 70; 24 Pac. 577; 22 A. S. R. 376. Bodlne v. Exchange Co., 51 N. T. 117 ; 10 A. R. 566, citing: Story on Agency, Sec. 14. Deitz v. Providence Co., 33 W. Va. 626; 11 S. B. 50; 25 A. S. R. 908. May on Insurance, 3d Ed. Sees. 154, 154A. 2 Wood on Insurance, 2d Ed. Sec. 433. Eclectic Co. v. Fahrenburg, 68 111. 463. Llngenfelter v. Phoenix Co., 19 Mo. App. 252. Arff v. Star Co., 125 N. Y. 57; 25 N. E. 1073; 21 A. 8. R. 721; 10 L. R. A. 609. McEven v. Montgomery Mut., 5 Hill 101. v. Caese9 Co. 14 N. Y. 421. 272 THE LAW OP WAIVES And the principles applying to clerks are equally ap- plicable to sub-agents, and the acts of the latter are the acts of the agent and, therefore, the acts of the company 4 . So, if a sub-agent, who has been correct- ly informed, makes a mistake in filling in an applica- tion, the company will be bound 5 . And it is said that a company is liable for the acts of a sub-agent whether it knew of his employment or not if it re- ceived the benefits of his labor 6 . And even where a sub-agent countersigns a policy for the agent, the company is bound if, after a knowledge of all the facts, the agent ratifies the act of the sub-agent by delivering the policy 7 . Sec. 273. The courts are not wholly harmonious as to the above principles. In one case it was held that a clerk employed by an insurance agent, without the knowledge of the company, and authorized by the agent to fill out and issue policies, sign the agent's name, and indorse the rate of insurance on policies, was not the agent of the company, and though the agent had power to waive any forfeiture of the pol- icy for additional insurance, effected without the consent of the company, he could not delegate his authority to his clerk, and hence that a waiver by such clerk could not be imputed to the company 8 . And several other courts lean toward this reason- ing on the well-established principle of agency that 4. Grubbs v. N. Car. Co.. 108 N. Car. 472; 13 S. E. 236; 23 A. S. R. 62. 5. Langdon v. Union Co., 14 Fed. 272. 6. Continental Co. v. Ruckman, 127 111. 364; 20 N. E. 77; 11 A. S. R. 121. 7. Grady v. Am. Cent. Co., 60 Mo. 123. 4. Waldman v. No. British Co.. 91 Ala. 170; 8 So. 666; 24 A. S. R. 883. INSURANCE 273 an agent cannot delegate his authority to another. But the decided weight of authority is on the side of the doctrine first above announced. And familiarity with the methods in which the insurance business is carried on will suggest the good sense and reason of the doctrine. Insurance agents usually solicit and transact insurance business through clerks, sub-agents and assistants, and the more cap- able the agent is, and the greater the volume of his business, the greater will be his need of clerical as- sistance and sub-agents ; and in case of his employ- ment of such, promotion of the insurance business and its most convenient dispatch, as well as justice and good faith with those dealing with insurance companies through such agencies, demand that the insurers be held liable for the acts of the clerks and assistants 9 . 2. WHAT MAY BE WAIVED; AND WHAT AMOUNTS TO A WAIVER: A. ACTS PROHIBITED BY CHARTER: Sec. 274. The act of incorporation of an insurance company is an enabling act ; it gives the corporation all the power it possesses; it enables it to contract, and when it prescribes to it a form of contracting it must observe that mode or the instrument will no more create a contract than if the body had never Bennett v. Council Bluffs Co., 70 la. 600; 31 N. W. 948. Fitzgerald v. Hartford Co., 56 Conn. 116 ; 13 Atl. 673 ; 17 Atl. 411 ; 7 A. S. R. 288. Steele v. German Co., 93 Mich. 81 ; 53 N. W. 514 ; 18 L. R. A. 85. Kq. Soc. v. Brobst. 18 Neb. 526; 26 N. W. 204. Heath v. Springfield Co.. 58 N. H. 414. Carpenter v. Ger-Am. Co.. 135 N. Y. 298 ; 31 N. E. 1015. Hartford Co. v. Josey. 6 Tex. Civ. App. 290 ; 25 S. W. 685. Goode v. Ga. Home Co.. 92 Va. 392; 23 S. E. 744; 53 A. S. R. 817; 30 I* R. A. 842. 274 THE LAW OF WAIVER been incorporated 10 . Under such authority it has been held that prohibitions in a charter or the by- laws of an insurance company cannot be waived by its officers or agents 11 , the cases going on the theory that provisions in such charters or by-laws are semi- public in that they are designed for the prevention of over-insurance and other evils to which the pub- lic might be subjected as well as for the protection of the insurer itself 12 . But no good reason presents itself for permitting its officers and agents to forego other rights and benefits pertaining to the business and yet denying their power to waive any of the pro- visions of its charter or by-laws where the interests of an innocent individual are involved. Sec. 275. Such officers and agents know the extent of their powers and the limitations of author- ity given by the charter and by-laws of the company, and this is not true of one per cent, of those who are insured by such comany and pay their premiums to it. And to say that while holding this knowledge exclusively such insurer can deliberately act con- trary to the terms of its charter or by-laws while as- suming to act in accordance with them or at least in- ducing those dealing with it to believe that its rights o disregarded would not be insisted upon and then after action brought against it, to hide behind a cloak of immunity from liability theretofore un- known to the insured, occurs to us to be legalizing fraud and unfair dealing. And it has been held that 10. Head v. Providence Co., 2 Cranch 127 (U. S.). 11. Hale v. Mech. Co., 6 Gray 169; 66 A. D. 410. Lolhner v. Home Co.. 17 Mo. 247. Stark County Co v. Hurd. 19 Oh. 149. 18. Couch *. City Co., 38 Conn. 181 ; 9 A, R. 375. INSURANCE 275 the violation of its charter is a matter to be settled between the insurer and those who gave it its char- ter, but it cannot set up its own misconduct or dere- liction in defense against the claim of the insured for indemnity, as by showing that in insuring to the stipulated amount it has infringed one of its own by- laws 13 . So, an estimate of the valuation made by the agent of the insurer or by him and the insured together is controlling, regardless of any contrary provision of the by-laws of the company 14 . Sec. 276. And a policy of insurance is not void because the risk was taken in violation of a by-law providing that certain risks should not be taken un- less approved by a special committee, the policy having been issued by a duly-appointed agent of the company upon full knowledge of all the facts mate- rial to the risk 15 . Another case was a suit on a pre- mium note. The defense was that the note and pol- icy were void because the risk had been taken in vio- lation of the company's by-laws ; but it was held that this did not render void the policy nor the note given in consideration of it 16 . And the court of another state said : The first objection made by the defend- ants to the plaintiff's right to recover is that the plaintiff did not give notice of the loss in the manner and within the time required by the by-laws of the company. The defendants were, in fact, notified of the loss the dav after the fire and in the manner stat- II. Hoxsie v. Providence Co., 6 R. I. 517. Fuller v. Boston Co.. 4 Met. 206 (Mass.). Cumberland v. Schnell, 29 Pa. St. 31. 14. Wilbur v. N. Eng. Co.. 31 Me. 219. 15. Merchants Co. v. Curran. 45 Mo. 142 ; 100 A. D. 31. 16. Union Co. v. Keyser, 32 N. H. 313 : 64 A. D. 375. THE LAW OF WAIVBB ed in the report. Almost a week after this notice the president of the defendants came to Fairhaven and New Bedford and went to the ruins. The object of this visit of the president, no doubt, was to make him- self fully acquainted with all the facts and circum- stances of the case. After the president had thup been to the ruins, it would seem, as the case finds, that the defendants declined to pay the loss altogeth- er. The president, without doubt, obtained all the information he desired ; and further notice to the de- fendants, therefore, would have been wholly unim- portant and useless to them. The refusal to pay the loss was not put upon the ground of any defect or insufficiency in the notice. No objection was taken at that time to the form of the notice ; no further or more particular notice was requested; but the de- fendants declined to pay the loss altogether; and within thirty days after the loss, and of course be- fore the expiration of the time allowed to the plain- tiff to give the notice. This conduct on the part of the defendants, upon any sound and just principle of fair dealing, must be regarded as a waiver of any further or different notice. The principle of waiver is a recognized and well-settled principle, and ap- plies with much force to the present case 17 . B. CONDITIONS: 1. BREACH OF CONDITION PRIOR TO DELIVERY OF POLICY. Sec. 277. The issuance of a policy by an insurance company with full knowl- edge of all the facts affecting its validity, is tanta- mount to an assertion that the policy is valid at the 17. Clark v. N. E. Mut. Co., 6 Cush. 342 (Mass.) ; 53 A. D. 44. INSURANCE 277 time of its delivery and is a waiver of any known ground of invalidity. From such conduct the insured might fairly infer, and he has a right to infer that he is protected. If he did not so infer, it is reasonable to suppose that he would protect himself by procur- ing other insurance. It would not be consistent with fair dealing and honesty for the company to under- take to avoid its policy under such circumstances when the assured has rested in the belief that he was protected, until his property was destroyed, and when that belief was the result of its conduct 18 . It is not easy to perceive why an insurance company, by reason of the formal words and clauses inserted in its policy, intended to meet broad classes of contin- gencies, should ever be allowed to avoid liability on the ground that facts, of which the company had full knowledge at the time of issuing the policy, were then not in accordance with the formal words of the contract or some of its multifarious conditions. If such facts are to be held a breach of such a clause, they are a breach eo instanti of the making of the contract and are so known to the company as well as to the insured. And to allow the company to take the premium without assuming the risk would be to encourage a fraud. It would, as a legal principle, be equivalent to holding that the warranty of the soundness of a horse is a warranty that he has four legs when one of them has been cut off 19 . Sec. 278. An examination of the authorities discloses greater harmony on this branch of the law of waiver as applied to insurance contracts than any 18. Dwelllng-House Co v. Brodie, 62 Ark. 11 ; 11 S. W. 1016 ; 4 L. R. A. 458. 19. Birdwell v. Northwestern Co.. 24 N. Y. 302. 278 THE LAW OF WAIVER. ether phase. And, indeed, there should be no vari- ety of opinion among the courts on the matter under discussion. Only the simple and elementary prin- ciples of waiver are involved, being the voluntary surrender or foregoing of a right fully known to him possessing it. And, once shown that an insurer had a right to insist upon some condition, warranty or stipulation at the time of delivering its policy, but with full knowledge of the facts remained silent or by any sort of conduct failed to claim such right, then it will be held to have voluntarily relinquished, abandoned or waived it and cannot be heard later to complain 20 . (a) CONDITION AS TO TITLE: Sec. 279. Remembering that the common rules of agency are applicable to insurance companies and those employ- ed by them to solicit and perfect contracts of insur- ance, it follows that knowledge of the agent of facts 20. Anderson v. Manchester Co., 59 Minn. 182; 63 N. W. 241; 50 A. S. R. 400 ; 28 L. R. A. 609. Imp. M. Co. v. Mich. Co., 122 Mich. 256 ; 80 N. W. 1088. Triple Link v. Williams, 121 Aia. 138; 26 So. 19; 77 A. S. R. 34. Bebee v. Hartford Co.. 25 Conn. 51 ; 65 A. D. 553. Davis v. Phoenix Co.. 11 Cal. 409 ; 43 Pac. 1115. Comba v. Hannibal Co., 43 Mo. 148. Phoenix Co. v. Raddin. 120 U. S. 196; 30 L. Ed. 648. Wood v. American Co., 149 N. T. 382; 78 Hun 109; 29 N. T. Supp, 250; 44 N. E. 80; 52 A. S. R. 733. Patten v. Merchants Co.. 40 N. H. 375. Hadley v, N. H. Co.. 55 N. H. 110. Gans v. St. Paul., 43 Wis. 108; 28 A. R. 535. Eggleston v. Council Bluffs Co., 65 la. 308 ; 21 N. W. 652. Georgia Home Co. v. Kinnier. 28 Gratt. 88 (Va.). Niagara Co. v. Johnson. 4 Kans. ADP. 16; 45 Pac. 789. Commonwealth v. Huntzinger. 98 Pa. St. 41. Worachek v. New Denmark Co.. 102 Wis. 88 : 78 N. W. 165. No. Assur. Co. v. Grand View Assoc. 101 Fed. 77 ; 41 C. C. A. 207. Security Co. v. Tarpey, 182 III 52; 54 N. E. 1041. Hartford Co. v. Post. 25 Tex. Civ. App. 428 ; 62 S. W. 140. Aetna Co. v. Olmstead, 21 Mich. 246; 4 A. R. 483. INSURANCE 275 existing at the time of the issuance of a policy of in- surance which would render it void is knowledge of the company. Therefore, even though there is a stip- ulation in the policy prohibiting a waiver of condi- tions therein other than by a written endorsement on such policy, if an agent delivers the policy and re- ceives the premium therefor with knowledge of a breach of a condition in the policy respecting the sole and unconditional ownership of the property, such condition, or the breach thereof is thereby waived. And this is true notwithstanding there is a provi- sion in the policy prohibiting an agent from waiving any of its conditions in any manner other than by writing indorsed thereon 21 . So, the defense that the insured was not the sole and unconditional owner of the property cannot be made where it appears that the agent of the insurer was informed that the true ownership of the property was in another than the insured 22 . Notice to the insurance agent that the in- sured had only a bond for title is notice to the in- surer of the condition of the title, and the subsequent delivery by him of a policy to the insured is a waiv- er of any breach of condition in such policy as to title 113 . And if the insured states in his application that he holds title by "deed", such statement is suf- 21. Santa Clara etc. v. N. W. Nat. Co.. 98 Wis. 257; 73 N. W. 767; 67 A. S. R. 805. McMurray v. Capital Co., 87 la. 453 ; 54 N. W. 354. Breedlove v. Norwich Soc. 124 Cal. 164; 56 Pac. 770. Batema-n v. Lumbermen's Co., 189 Pa. St. 465 ; 42 Atl. 184. Dupuy v. Del Co., 63 Fed. 680. 22. Graham v. Fire Ins. Co., 48 S. Car. 195; 26 S. E. 323; 59 A. S. R. 707. State Mut. Co. v. Da Tourotte. 71 Ark. 242; 74 S. W. 300; 10 A. S. R. 63. 23. Germania Co. v. Ashby, 112 Ky. 303; 65 S. W. 611; 99 A. S. R. 295. 280 THE LAW OF WAIVBB ficient to put the insurer upon inquiry and it cannot defend an action on the policy where the insured did not have title in fee as required by the policy 24 . Sec. 280. Where the insured told the agent of the insurer that he owned the building insured but that it was standing on leased land yet the agent is- sued and delivered the policy, such was held a waiver of the condition in the policy that it should be void if the insured did not own a fee simple title to the land upon which the building was standing 25 . So, the mere failure or neglect of the insured to make known, without inquiry, facts relating to the title which the insurer might deem material, is not a breach of a condition of the policy relating to the title or liens on same, 'because the assured is entitled to assume that the insurer will make proper inquiry afoout all matters it deems material to the risk, and that it waives knowledge as to all other matters, ex- cept, possibly, in reference to extraordinary or un- usual circumstances within the knowledge of the as- sured ; but of which there is nothing to put the in- surer upon inquiry 26 . This proposition, however, has been denied 27 . 24. Clawson v. Citizens Co.. 121 Mich. 591 ; 80 N. W. 673 ; 80 A. S. R. 538. 25. Johnson v. Aetna Co.. 123 Ga. 404; 51 S. E. 339; 107 A. S. R. 92, overruling Thorton v. Travelers Co., 116 Ga. 122; 42 S. E. 287 ; 94 A. S. R. 99 ; Mech. Ins Co. v. Mut. Assoc., 98 Ga. 262 ; 25 S. E. 457. 26. Richards on Insurance. Sec. 136. Sanford v. Royal Co., 11 Wash. 653 ; 40 Pac. 609. Short v. Home Co.. 90 N. T. 16 ; 48 A. R. 138. Morrison v. Tennessee, 18 Mo. 262 ; 59 A. D. 299. Koshland v. Hartford Co.. 31 Oreg. 402; 49 Pac. 866. Trade Ins. Co. v. Barracliff. 45 N. J. 543. Guest v. Ins. Co., 66 Mich. 98 : 33 N. W. 31. 27. Pope v. Glens Falls Co., 136 Ala. 670; 34 So. 29. INSURANCE 281 Sec. 281. So, therefore, the principle applicable to the matter under discussion may be stated thus: The application for insurance usually contains a representation that the insured is the absolute owner of the property insured ; the policy contains a clause to the effect that unless the condition of the title is truly stated in the application, or the insured is the unconditional owner, or if the building stands on leased ground, the policy shall be void ; it is the duty of the agent of the insurer to make proper inquiry as to the title, and if he fail to make such inquiry, or if he know at the time of the delivery of the policy or if he have knowledge of sufficient facts to put him on inquiry as to the true state of the title of the property insured, his knowledge and acts are imput- able to his principal and the policy will be held valid even though the condition as to the title has been broken 28 . 28. Parsons v. Knoxville Co., 132 Mo. App. 583 ; 34 S. W. 476. Born v. Home Ins. Co.. 120 la. 299; 94 N. W. 849. Allen v. Home Co., 133 Cal. 29; 65 Pao. 138. Germania Co. v. Hick, 23 111. App. 381 ; 125 111. 361 ; 17 N. B. 792 ; 8 A. S. R. 384. Mutual Co. v. Hammond. 106 Ky. 386; 50 S. W. 545. Forward v. Continental Co.. 142 N. Y. 382; 37 N. B. 615; 25 L. R. A. 637. Arthur v. Palatine Co., 35 Oreer. 27 ; 57 Pac. 62 ; 76 A. S. R. 450. West v. Norwich Co.. 10 Utah, 442 : 37 Pac. 685. Goss v. AKT. Co.. 92 Wis. 233; 65 N. W. 1036. Cowell v. Phoenix Co.. 126 N. Car. 684; 36 S. E. 184. Leach v. Republic Co., 58 N H. 245. Home Co. v. Gibson. 72 Miss. 58 ; 17 So. 13. Wagner v. Westchester Co., 92 Tex. 549; 50 S. W. 569. Medley v. German Alliance Co.. 55 W. Va. 342; 47 S. E. 101. Home Co. v. Duke. 84 Ind. 253. Schaeffner v. Farmers Co., 80 Md. 563 ; 31 Atl. 317. Parsons v. Knoxville Co., 132 Mo. 583 ; 31 S. W. 117. Cowart v. Capital City Co., 114 Ala. 356 ; 22 So. 574. 282 THE LAW OF WAIVER (b) CONDITION AS TO ENCUMBRAN- CES : Sec. 282. The foregoing remarks anent con- ditions as to TITLE are equally applicable to pro- visions that the undisclosed existence of encumbran- ces at the time of application for insurance shall ren- der the policy subsequently issued void. If an appli- cation for fire insurance is oral and no inquiry is made by the agent of the insurer as to the condition of the title to the property and the insured says nothing about the existence of a mortgage thereon, but does not keep silent through any sinister motive or with the intention to mislead or deceive the insur- er, then the fact that when the policy issued there was a mortgage upon the insured property will not invalidate the policy notwithstanding the fact that the policy provides that it shall be void if there ex- ists an encumbrance by mortgage or otherwise upon the insured property 29 . For an applicant for in- surance is not required to show the exact condition of his property or its title unless he is requested to do so; and failure of the insurer to make such re- quest or inquiry respecting the title is a waiver of the right to avoid the policy in case encumbrances exist contrary to the terms of the policy 30 . The rea- son for this is that applicants for insurance are not 29. Hanover Co. v. Bohn, 48 Neb. 743 ; 67 N. W. 774 ; 58 A. S. R. 719. Ins. Co. v. Bachelder, 44 Neb. 549 ; 62 N. W. 911. Sproul v. West. Co., 33 Oreg. 98; 54 Pac. 180. Wright v. London Co.. 12 Mont. 474 : 31 Pac. 87. Aetna Co. v. Holcomb, 89 Tex. 404; 34 S. W. 915. German Co. v. Nelwedde, 11 Ind. App. 624 ; 39 N. B. 534. SO. Western Co. v. Home Co., 145 Pa. St. 346; 22 Atl. 665; 27 A. 8. R. 703. Hall v. Niagara Co., 93 Mich. 184; 53 N. W. 727; 32 A. S. R. 497. INSURANCE 283 generally aware of the necessity of disclosures which long experience in the business of insurance has shown to underwriters to be necessary, or what disclosures it is important to make ; while insurance companies cannot only protect themselves by making inquiries in regard to such things as they may deem material, but as is well known, are in the habit of doing so. If an insurance company elects to issue its policy without any application or representation in regard to the title to the property upon which the insurance is effected, the company cannot complain after a loss has ensued, that the interest of the as- sured was not correctly stated in the policy, or that an existing encumbrance was not disclosed 31 . A for- liori, where the insured informs the agent of the in- surer of the amount of the encumbrances against the property the condition is not violated if the amount never exceeds the amount stated 32 , and the condition is waived if the agent fails to make mention of the encumbrances. And it doesn't matter whether the agent was acting for the insurer or not at the time he acquired knowledge of the encumbrances; if he retained a recollection of the fact and had it in mind when he effected the insurance, that is sufficient to bind his principal and an issuance of a policy there- after is a waiver of a breach of condition against encumbrances 33 . And where it appeared that an ap- 31. Morotock Co. v. Rodcfer. 92 Va. 747: 24 S. E. 393; 53 A. S. R. 846. Wood, Fire Insurance. Sec. 233. 82. Gould v. Dwelling House Co., 134 Pa. St. 570 ; 19 Atl. 793 ; 19 A. S. R. 712. S3. Wilson v. Minnesota Co., 36 Minn. 112; 30 N. W. 401; 1 A. S. R. 659. Wade on Notice. Sec. 687. 284 THE LAW OP WAIVEB plication falsely stated that there were no encum- brances on the property, but such false answer was inserted on the advice of the company's agent, the issuance of a policy thereon was held a waiver of the breach of condition against encumbrances. The court -used this language: "The insurers are chargeable with knowledge possessed by their agent, and that consequently it was a fraud on their part to receive the premium moneys and deliver the poli- cies without intending it should have effect under such circumstances. Such a fraud the law will not permit to be consummated; but on the contrary it will hold that when they delivered the policy it was with the intention that it should take effect, and that the insured should have the benefit from it for which he paid his money ; and if there was any error or am- biguity in the application which their agent pre- pared, they must be held, under the circumstances here appearing, to have waived it" 34 . And where the insured stated to the agent that there was an encumbrance on the property, such fact may be proved by parol although the policy stated that there was no encumbrance 35 . Sec. 283. The cases are not altogether uniform in this particular; for it has been held that if the policy prohibits a waiver by the agent the insured is bound by the provisions against encumbrances, and an attempted waiver may not be shown 36 . And it is said that if the insured knew at the time that the answers to interrogatories in the application were 34. Aetna Co. v. Olmstead. 21 Mich. 246: 4 A. R. 483. 85. Boetcher v. Hawkeye Co., 47 la. 243. 36. Hawkins v. Rockford Ins. Co.. 70 Wis. 1 ; 35 N. W. 34. INSURANCE 285 false he could not enforce the policy even though he had correctly stated the matter to the agent 37 . But such doctrine prevails mainly in those courts where it is held that statements in an application made by an agent of the insurer are not to be imputed to the insurer 38 , or where the charter of the company pro- hibits a waiver 39 . Sec. 284. But the overwhelming weight of au- thority is in favor of the principle that if an agent of the insurer fail to state truly in the application the facts given him by the insured, or if when mak- ing the application the agent have knowledge of ex- isting encumbrances, his knowledge is that of his principal and a subsequent issuance of a policy is a waiver of a breach of condition against encumbran- ces 40 . 37. Blooming Grove Co. v. McAnerney. 102 Pa. St. 355; 48 A. R. 209. 38. Lowell v. Middlesex Co.. 8 Gush. 127 (Mass.). Richardson v. Maine Co., 46 Me. 394 ; 74 A. D. 459. 39. Leonard v. American Co.. 97 Ind. 299. 40. Continental Co. v. Chamberlain. 132 U. S. 304; 10 Sup. Ot. R. 87; 33 L. Ed. 341. London Co. v. Fischer. 92 Fed. 500 ; 34 C. C. A. 503. MoElroy v. Brit.-Amer. Co., 94 Fed. 990; 36 C. C. A. 615. Beebe v. Ohio, etc., Co., 94 Mich. 514 ; 53 N. W. 818 ; 32 A. S. R. 519; 18 L. R. A. 481. Hartford Co. v. McCarthy, 69 Kans. 555 ; 57 Pac. 90. Breedlove v. Norwich Co.. 124 Cal. 164 ; 56 Pac. 770. German-Am. Co. v. Yeagley, 168 Ind. 651 ; 71 N. E. 897. Phoenix Co. v. La Pointe. 17 111. App. 248; 118 111. 384; 8 N. B. 353. German Co. v. Hayden, 21 Colo. 127: 40 Pac. 453; 62 A. S. R. 206. Breckenridge v. American Co., 87 Mo. 62. Vesey v. Commercial Co., 101 N. W. 1074 (S. Dak.). Botoklrk v. Phoenix Co.. 102 Wis. 13; 78 N. W. 160. Ring v. Windsor Co.. 51 Vt. 563. Robbins v. Springfield Co., 149 N. T. 477; 44 N. B. 59. German Co. v. Gray. 43 Kans. 497 ; 23 Pac. 637 ; 19 A. S. R. 150; 8 L. R. A. 70. Hornthal v. Western Co.. 88 N. Car. 71. German Co. v. Everett. 18 Tex. Civ. APD. 514; 46 S. W. 95. Hartford Oo. v. Harmer, 2 Oh. 6t. 452: 57 A. D. 684. 286 THE LAW OF WAIVER (c) CONDITION AS TO VACANCY: Sec. 285. Whether the fact that a house is vacant when in- sured will render effective a provision in the policy that it shall be void if the house is vacant, depends on the knowledge or lack of knowledge by the insur- er or its agent of such vacancy. If an insurer issue a policy on property with actual knowledge of itself or its agent that the premises are vacant, he is es- topped to allege such defense to an action to recover for a loss under the policy 41 . And the provision in a policy that if at any time during the continuance of the policy the insured property should become vacant the insurer should become absolved from all liability is held to have no application to buildings that were vacant at the time the policy was issued, the insurer having notice of the fact 42 . The cases are rather uniform on this phase of the law except in those jurisdictions where knowledge of the agent is not imputable to the insurer 43 . But the issuance of such policy with knowledge of the vacancy is not a waiver of the continuance of the vacancy beyond a specified time 44 . 41. Rochester Co. v. Liberty Ins. Co.. 44 Neb. 537; 62 N. W. 877; 48 A. S. R. 745. 42. Aurora Co. v. Kranlch. 36 Mich. 289. Short v. Home Ins. Co., 90 N. T. 16; 43 A. R. 138. 43. Prenderg-ast v. Dwelling H. Co., 67 Mo. App. 426. Blass v. Agrr. Ins. Co., 46 N. T. Supp. 392 ; 18 App. Dlv. 481. Carr v. Roger Williams Co., 60 N. H. 513. Liverpool Co. v. McGulre. 52 Miss. 227. Devme v. Home Co.. 32 W5s. 471. Queen Co. v. Strauphan. 70 Kans. 186 ; 78 Pac. 447. Jordan v. State Ins. Co., 64 la. 216 ; 19 N. W. 917. Lamberton v. Conn. F. Ins. Co., 39 Minn. 130; 39 N. W. 76. 44. Conn. F. Co. v. Tllley, 88 Va. 1024 ; 14 S. E. 851 ; 29 A, S. R. 770. INSURANCE 287 (d) CONDITION AS TO USE OF PREMI- SES : Sec. 286. Most policies of fire insurance pro- vide that the premises shall not be used for specified purposes or that designated articles or property usually deemed hazardous shall not be kept thereon. The uses forbidden are those which render the risk greater, and the articles forbidden to be kept are usually such as gasoline or other inflarnable substan- ces, gunpowder, dynamite, or other explosives. Such use of the premises or the keeping of the forbidden articles thereon renders the condition of the policy broken and the insured cannot recover thereon after a loss. This rule, however, is subject to the qualifi- cation that the insurer must not have known before or at the time of delivery of the policy that such use was being made of the premises or that such forbid- den articles were being kept thereon. If the insurer had such notice, yet went on and delivered the pol- icy, and accepted the premium money, the condition will be held to have been waived. And in this con- nection again, knowledge of the agent is imputed to the principal and will be given binding effect 45 . (e) CONDITION AS TO PRIOR INSUR- ANCE : Sec. 287. Where policies provide that the existence of other insurance at the time of their is- sue shall avoid the policies, such provisions are con- 4 Hartley v. Perm. Co.. 91 Minn. 382; 98 N. W. 198; 103 A. S. R 512. Kruger v. Western Co., 72 Cal. 91 ; 13 Pac. 156 ; 1 A. S. R. 42. Steers v. Home Co., 38 La. Ann. 952. Farmers Co. v. Nixon, 2 Colo. App. 265 ; 30 Pac. 42. State Co. v. Taylor, 14 Colo. 499; 24 Pac. 333; 20 A. S. R. 281. Imperial Co. v. Shimer. 96 111. 580. Kenton Ins. Co. v. Downs, 90 Ky. 236; 13 S. W. 882. Rlvara v. Queens Ins. Co.. 62 Miss. 720. Peoria Co. v. Hall. 12 Mich. 202. THE LAW or WAIVER ditions precedent, and if prior insurance exists at that time, it renders the policies voidable. But this, too, is a condition that may be waived, and the waiv- er may be an express one or evidenced by acts and conduct sufficient to induce the insured to believe that the condition would not be insisted upon. And in this connection, knowledge of facts brought to the attention of its agent is imputed to the insurer and binding upon it. Therefore, if at the time of the issuance of a policy the agent knew of the exist- ence of prior insurance contrary to the condition of the policy, and with such knowledge he delivered the policy and received the premium money, the condi- tion is waived and the insurer bound 46 . The knowl- edge of the agent who had effected the prior insur- ance is sufficient 47 . So, waiver occurs where the in- sured stated to the agent that there was other in- surance, but signed an application prepared by the agent stating that there was no previous insurance 48 . And a failure by the insured to give notice of other insurance is not fatal to the validity of the policy where such other insurance is already known to the insurer, as the issue of the subsequent policy is a waiver of the condition against pre-existing insur- ance 49 , as is also the accepting of a renewal pre- 46. Putnam v. Common wealth, 4 Fed. 753. L/ockwood v. Middlesex Co., 47 Conn. 553. No. Brit. Co. v. Stelffer. 124 111. 81; 16 N. H. 5. Ly coming Co. v. Barringer. 73 111. 230. 47. Richmond v. Niasara Co.. 7$ N. Y. 230. 48. Am. Ins. Co. v. LuttrelL 89 111. 314. England v. Westchester Co., 81 Wls. 583 ; 61 N. W. 954 ; 29 A. S. R. 917. 49. Rowley v. Empire Co., 36 N. T. 550. Wash. Ins. Co. v. Davison, 30 Md. 91. Webster v. Phoenix Co.. 36 Wis. 67. May, Insurance, Sec. 375, citing above authorities. INSURANCE 289 mium 50 . And neglect of the insurer to avoid the pol- icy for an unreasonable time after knowledge of its right to do so is a waiver of such cause of forfeit- ure 51 . It has been held that where a policy con- tained a provision that it should be void if other in- surance should not be endorsed on it, that the ex- istence of other insurance not so endorsed did not make the policy absolutely void but voidable and capable of being made valid by the acts or acqui- escence of the insurer amounting to a waiver 52 ; and want of indorsement of other insurance upon a pol- icy at the time of its issuance cannot invalidate it where such other insurance was already known to the insurer 53 . Sec. 288. The rules above announced are not without dissent. It has been said that the require- ment that other insurance be endorsed on the policy is a condition precedent to the right of recovery, and that mere notice to the agent or verbal communica- tion to the insurer is not a compliance with this re- quirement and does not validate the policy 54 . An apparent concurrence in this last-named doctrine may be noticed in a New York case 55 ; and in its favor the Supreme Court of the United States has 50. Carrol v. Charter Oak Co., 1 Abb. Ct. of App. Dec. 316. 51. Fishbeck v. Phoenix Co.. 64 Cal. 422. City Ins. Co. v. Carrugi, 41 Ga. 660. Pitney v. Glens Falls Co., 65 N. Y. 6. 52. Atl. Ins. Co. v. Goodhull, 35 N. H. 32S. 53. National Co. v. Crane. 16 Md. 260. Kenton Ins. Co. v. Shea, et al.. 6 Bush 174 ; 99 A. D. 676. 54. Hutchinson v. Western Co., 21 Mo. 97; 64 A. D. 218. Barrett v. Union Mut. Co., 7 Gush. 175. Dietz v. Mound City Co.. 38 Mo. 85. Bennett v. St. Paul Co., 55 N. J. L. 377; 27 Atl. 641. 6 Sanders v. Cooper, 115 N. Y. 279; 22 N. E. 212; 12 A. S. R. 801. 200 THE LAW OF WAIVER lent the weight of its authority 56 . But in Missouri and New York courts a change has been made from their former views and the first-named doctrine has been adopted 57 . In fact the greater number of au- thorities and the weightier ones are in favor of the principle which sound sense and fair dealing de- mand, that if an insurer deliver its policy and collect premiums from the insured, knowing at the time, by itself or its agent, of the existence of other insurance contrary to the terms of the policy, compliance with the condition is waived and the policy is valid with- out an indorsement of the other insurance upon the policy 68 . (f) CONDITION AS TO "IKON-SAFE" PROVISION: Sec. 289. Fire insurance policies frequently contain what is known as an "Iron-safe clause" applicable to insurance on stocks of mer- chandise. This clause requires the insured to keep the books and last inventories of his business se- curely locked in a fire-proof safe at night and at all times when the building containing the goods is not actually open for business, or to keep such books and inventories in some place not exposed to a fire which would destroy the building 69 . This condition is one intended to relate not only to the time of executing W. Carpenter v. Providence Co.. 16 Pet. 512. No. Assur. Oo. v. Grand View Assoc., 183 U. S. 308 ; 22 Sup. Ct 133. M. Hay ward v. National Co.. 52 Mo. 181. Polkingrton v. National Co.. 55 Mo. 172. Goldwater v. Liverpool Co., 109 N. Y. 618 ; 15 N. B. 895 ; 39 Hun 176. Stage v. Home Co.. 78 N. Y. Supp. 555; 76 App. Dlv. 509. 8. Horwitz v. Equitable Co., 40 Mo. 557 ; 93 A. D. 321. St. Phoenix Co. v. Schwartz, 115 Ga. 113; 41 S. B. 240; 90 A. S. R. M. INSUKANCE 291 the policy but also to the whole period during which it. is in existence. Many cases hold that this condi- tion, like many others hereinbefore discussed, may be waived either expressly or by a course of con- duct inconsistent with any intention to rely upon it. And these cases hold that if at the time the agent delivered the policy the books and inventories were not being kept by the insured in the manner speci- fied in the policy, and the agent knew such fact but delivered the policy notwithstanding, such conduct amounts to a waiver of the condition as the knowl- edge of the agent is imputed to the principal. The failure to keep the safe, or the books therein, or out of the building will not avoid the policy when the agent of the company soliciting the insurance knew that there was no such safe ; the reason for this rule is that such clauses are conditions subsequent that operate as a forfeiture of the right to compensation for loss sustained, and the courts will never declare a forfeiture of a right when there is any reason for an equitable estoppel from such plea 60 . American Co. v. Felder, 44 S. Car. 478 : 22 S. E. 598. Candy v. Orient Co.. 62 S. Car. 224 ; 29 S. E. 655. Mesterman v. Home Co.. 5 Wash. 524; 32 Pac. 458; 34 A. S. R. 877. Anderson v. Manchester Co.. 59 Minn. 182 ; 60 N. W. 1095 ; 63 N. W. 241: 50 A. S. R. 400. Miller v. Hartford Co., 70 la. 704; 29 N. W. 411. Western Co. v. Phelps, 77 Miss. 625; 27 So. 745. Reid v. Equitable Co.. 17 R. I. 785; 24 Atl. 833; 18 L. R. A. 496. Roberts v. Continental Co., 41 Wis. 321. Johnson v. Farmers Co.. 126 la. 565 ; 102 N. W. 502. Koshland v. Home Co.. 31 Oreg. 321 ; 50 Pac. 567. Germania Co. v. Heflin, 22 Ky. L. R. 1212 ; 60 S. W. 393. Niagara Co. v. Johnson, 4 Kans. App. 16 ; 45 Pac. 789. Spalding v. N. H. Fire Co., 71 N. H. 441 ; 52 Atl. 858. Osborne v. Phenix Co., 23 Utah 428; 64 Pac. 1303. Fishback v. Phoenix Co., 54 Cal. 422. Germania Co. v. Heflin, 22 Ky. L. R. 1212 ; 60 393. Citizens Co. v. Crist, 22 Ky. L. R. 47 ; 56 S. W. 658. 60. Gernrania Co. v. Ashby, 112 Ky. 303 ; "65 S. W. 611; 99 A. S. R. 295 292 THE LAW OF WAIVER Sec. 290. An insurance company cannot osten- sibly contract for keeping an inventory and books of account in an iron safe, and yet with full knowl- edge that the insured had not intended to have such safe, and with full knowledge that such inventory and books of account had been kept and would be continued to be kept at the store, to receive the in- sured 's premiums as for a valid policy, the company intending to deny its validity if a loss should occur. To sanction such would be to sanction fraud 61 . The reasons for holding the company to a waiver in such case, appeal to us less forcibly than for the waiver of other conditions in insurance policies. The con- dition attaches to the policy at the time of its de- livery and continues during the life of the policy, and if the insured has been in the habit of keeping his books and inventories in a manner other than that provided in the contract of insurance, the ac- ceptance of the policy with its condition is notice to him to change his manner of keeping them, and if he fails to do this, it occurs to us that such is a plain violation of the conditions of his contract for which the insurer should not suffer. Some courts lean in this direction 62 , but the majority favor the doctrine that acquiescence by the insured in the breach of the condition is a waiver of it. 61. Mitchell v. Miss. Home Co., 72 Miss. 53 : 18 So. 86 ; 48 A. S. R. 535. Rivara v. Queen's Co.. 62 Miss. 720. Sprott v. N. Orleans Co.. 53 Ark. 215 ; 13 S. W. 799. Niagara Co. v. Brown, 123 111. 356; 24 111. App. 224; 15 N. E. 166. Phoenix Co. v. Handle, 81 Miss. 720 ; 33 So. 500. 2. Morris v. Imperial Co., 106 Ga. 461 ; 32 S. E. 595. Howers v. Mut. Co., 113 la. 551; 85 N. W. 763. 'rillum v. Fire Assoc., 106 Mo. App. 673 ; 80 S. W. 283. Roberts Co. v. Sun Co., 13 Tex. Civ. App. 64 ; 35 S. W. 955. Maupin v. Scottish Co., 53 W. Va. 557 ; 45 S. E. 1003. INSURANCE 293 (2). BREACH OF CONDITION SUBSEQUENT TO DE- LIVERY OP POLICY. (a) CHANGE IN TITLE : Sec. 291. For the purpose of influencing the assured to retain the proper motive to be vigilant in the care of his prop- erty, most policies insuring property against loss by fire provide that an alienation of the property or a change in ownership shall render them void, unless the insurer consent to such alienation, such consent to be endorsed on the policy. Such provis- ion is valid and binding on the assured as he will be conclusively presumed to have knowledge of the con- ditions in the policy which he holds. But the pro- vision is inserted for the benefit of the insurer, and like all other rights it has, the right to insist on this provision may be waived by it either expressly or by any course of conduct calculated to induce the assured to believe that a forfeiture on account of the alienation of the property would not be invoked. But mere notice of a transfer is not sufficient to consti- tute a waiver, nor is the insurer bound to expressly disapprove it 63 . It is otherwise, if after such notice the insurer receive and retain premiums due on the policy 64 . In this, as in other cases of waiver, an agent of the insurer may assent to a transfer, and his act will bind his principal 65 , although it is thought that such would not be true where the agent had only the authority to solicit the insurance and not to collect premiums and otherwise attend to the company's business. Also the company is bound where its agent knows of a transfer and assents to it but fails to indorse such assent on the policy 66 . So, 63. Girard F. & M. Co. v. Hebard, 95 Pa. St. 45. 64. Millis v. Scottish Co., 92 Mo. App. 211 ; fig S. W. 1066. 65. Fire Ins. Co. v. Bide. Assoc., 43 N. J. 652. 66. Fire Ina Assoc. v. Miller, 2 Tex. Civ. Cases, 333. 294 THE LAW OF WAIVER a waiver occurs where the agent assents to a corres- ponding assignment of the policy, and failure of the company for more than a year after notice of such assignment to object to the act of the agent in agree- ing to the assignment is a ratification of his act 67 . And where the agent forwarded a policy to the in- surer for its approval, with knowledge of an alien- ation by the assured, agreeing that the policy should remain good until he could procure the assent of the insurer to the assignment, a forfeiture on account of the alienation was held waived 68 . And where a policy is forfeited by a change in the title of the in- sured property and the agent of the insurer informs the person for whose benefit the policy was issued that the policy will be allowed to stand, the insurer cannot after a loss declare the policy void 09 . As was said above, the same principles governing waivers of conditions in insurance policies generally are ap- plicable to the condition under discussion ; and mere knowledge by the agent issuing the policy or renew- ing it and receiving the premium, of facts consti- tuting a breach of the condition, without a prompt declaration of a forfeiture, is a waiver by him and by hie principal of the breach of the condition so known to be broken. This is put upon the ground that notice to the agent is notice to the principal, that what the agent knows the company must be re- garded as knowing ; and that as it would foe a gross fraud for the company knowingly to receive the pre- mium for issuing a policy on which it did not intend 67. Benninghoff v. Apr. Ins. Co., 93 N. T. 495. 68. 111. Mut. Co. v. Stanton, 67 111. 354. 69. Pratt t>. N. Y. Cent. Co., 55 N. Y. 505; 14 A. R. 304. INSURANCE 296 to -be liable and which it intended to treat as void i case of a loss, so it is equally a fraud and its fraud for its agent to do so 70 . Sec. 292. If the general agent of an insurance company applies to an insured to renew his policy and is informed by the latter that he has contracted to sell the insured property, has put the purchaser in possession and received part of the purchase-mon- ey, giving a full statement of the condition of the title, and such agent, without written application, executes and delivers a new policy on the property, which he states is sufficient to meet the situation, and receives the premium, the insurer cannot set up a forfeiture on account of the condition of the title contrary to the terms of the policy 71 . (b) VACANCY : Sec. 293. It has been held that when an agent delivers a policy of insurance constituting a complete contract, his authority over it or the subject-matter ceases; that he has no au- thority to modify its provisions nor to waive its terms; that after delivery of the policy, any knowl- edge of a breach of its conditions coming to him is not iniputable to his principal and not binding upon it. Courts go very far in applying this principle to the case of a vacancy of the insured premises oc- curring after the delivery of the policy where there is a provision that such vacancy shall render the 70. Peoria M. Co. v. Hall, 12 Mich. 214. Campbell v. Merchants Co., 37 N. H. 48. 71. Virginia etc. Co. v. Richmond Co.. 102 Va. 429; 46 S. E. 462; 10*. A. S. R. 846. See: Moffit v. Phenix Co., 11 Ind. App. 233; 38 N. E. 835. Shuggart v. Lycoming Co., 55 Cal. 408. 296 THE LAW OF WAIVER policy void 72 . And further, if an agent has only authority to solicit insurance and consummate the same, or to issue the policy, with no authority to change or waive any of its terms or conditions, any attempted change or waiver by him after the policy has been delivered is generally void; and in the ab- sence of any showing to the contrary, it will gen- erally be presumed that the assured had knowledge of the terms and conditions of the policy. Hence, if the policy provides that the policy shall be void if the property becomes vacant, without the consent of an officer of the company indorsed on the policy, a waiver by the local agent of this condition after the insurance is effected is unauthorized and ren- ders the policy void 73 . Sec. 294. But while a respectable array of au- thorities hold to the principles above announced, it is difficult to see why an agent clothed with authority to collect premiums falling due, or to assent to a change in the ownership of the insured property, or to waive any other condition after the taking effect of the policy, may not, for the insurer, forego the benefit of the vacancy clause. Better reasoning, and many authorities support the doctrine that he may. Of course, to constitute a waiver, the company must either itself, or by some act of its agent having ap- parent or real authority, do or say something that induces the insured to do or forbear to do something whereby he is prejudiced 74 . It is no waiver for the 72. Hartford Co. v. Davenport., 37 Mich. 609. Harrison -u. City Ins. Co., 9 Allen, 231; 85 A. D. 751. 73. Burlington Co. v. Gibbons, 43 Kans. 15; 22 Pac. 1010; 19 A. S. R. 118. 74. Weidert v. State Ins. Co., 19 Oreg. 261; 24 Pac. 242; 20 A. S. R. 809. INSURANCE 297 agent to tell the assured that the vacancy will inval- idate the policy or where, knowing of the vacancy subsequent to delivery of the policy, the agent mere- ly remains silent 75 . Still, knowledge of the agent is knowledge of the insurer, and if the agent knows a house is vacant at the time of delivering the policy insuring it, the vacancy clause is waived 76 ; and an agent may indorse on a policy consent for the prem- ises to be vacant or he may waive such indorse- ment 77 , even though the policy provide that no agent has power to waive any of its terms. (c) ENCUMBRANCES: Sec. 295. Policies may lawfully provide that no encumbrances shall be placed on the insured property subsequent to deliv- ery of the policy, and in such case, a violation of the provision avoids the policy. But the effect of such circumstance may be waived by the insurer, express- ly or impliedly, by itself or its agent. And it is said that an insurance agent furnished by his principal with blank applications and policies duly signed by the company's officers, and who has been authorized to take risks, to issue policies by simply signing his name, to collect premiums and cancel policies with- out consulting his principal, is empowered to waive conditions of forfeiture in such policies for encum- brances placed upon the insured property. He may waive such forfeiture by parol, notwithstanding the limitation upon his power contained in the policy 78 . 75. May, Insurance, Sec. 249 H. 76. Sentell v. Oswego Co., 16 Hun 518. Jordan v. State Co., 64 la. 216. Vanderhoff v. Agr. Ins. Co., 46 Hun 328. 77. Davey v. Glens Falls Co., 9 Ins. L. J. 499 (Minn.) ; Fed. Cas. No. 3590. 78. German-Am, Co. v. Humphrey, 62 Ark. 349; 35 S. W. 428; 54 A. S. R. 297. 298 THE LAW OF WAIVEB An assent by the company to a mortgage on the in- sured property is, of course, a waiver of the clause in the policy against subsequent encumbrances. So, where the insurer had notice of a sale of the prop- erty and assented thereto and its agent had notice of a mortgage executed as a part of the purchase- price, the company was held to have assented to the mortgage and could not declare a forfeiture on ac- count of a breach of the condition against encum- brances 79 . Sec. 296. Where the point has been raised, the courts have generally held that where the agent as- sents to the encumbrance or does any act leading the assured to believe that the policy will not be can- celled for a violation of the condition against en- cumbrances, the breach is waived 80 . (d) MISUSE OF PREMISES: Sec. 297. A majority of the courts hold directly that a local agent of an insurance company authorized, as most of them are, to solicit insurance, deliver policies and collect premiums, has no authority to waive a con- dition prohibiting the use of the premises for desig- nated purposes. A Federal court has said: "The fact that a local agent obtained knowledge, after the execution of the policy, that gasoline was being used on the premises, contrary to an express promissory warranty, and his mere silence on the subject do 79. German Tns. Co. v. York, 48 Kans. 488 ; 29 Par. 486 : 30 A. B. R. 313. Farmers Ins. Co. v. Ashton, 31 Oh. St. 477. SO. Bushnell v. Farmers Co., 110 Mo. App. 223; 85 S. W. 10S. Hardwlck v. State Co., 23 Greg- 290; 31 Pac. 666. Kenier v. Dwelling H. Co., 74 Wfis. 89 ; 42 N. W. 208. INSURANCE. 290 not operate as a waiver of such condition, where the policy provides that he shall have no authority to change or modify any of its terms. And the fact that the insurer has the right to cancel the policy for any unauthorized acts on the part of the insured raises no obligation to formally cancel the same; and its failure to do so is no waiver of its right to rely on the breach 81 . This is extending the doctrine to a considerable length, and it is thought that it conflicts somewhat with the law to be men- tioned in a succeeding section relating to forfeit- ures. But a forfeiture created by a breach of a condition in a policy prohibiting the use of gaso- line in the building is not waived because the com- pany's agent, whose authority was limited to so- liciting insurance, delivering policies and receiving premiums, consented that the building might be used as a restaurant which included the use of a gasoline stove 82 . Sec. 298. But a Kansas court has leaned to the doctrine that a breach of the condition under discussion may be waived by an agent. But it has said that to constitute a waiver of conditions as to the future use of insured premises, there must be something more shown than mere knowledge o'f such use on the part of the agent. The language and conduct of the agent must be such as to rea- sonably imply an intention on his part to waive such condition or to consent to such use 83 . But it has been held that the company is not bound, even where the agent expressly consented to the pro- hibited use of the premises 84 . 81. West End Hotel v. American Co., 74 Fed. 114. 82. Garretson v. Merchants Co., 81 la. 727; 45 N. W. 1047. 83. Concordia Co. v. Johnson, 4 Kans. App. 7 ; 45 Pac. 722. 84. Western Co. v. Rector, 85 Ky. 294; 3 S. W. 415. 300 THE LAW OP WAIVER. (e) ADDITIONAL INSURANCE : S e c . 299. The view is taken by many courts that an agent vested only with authority to solicit insurance and deliver policies has no authority to agree that the assured may procure other insurance on the same property, and that an express oral assent of such agent to the procuring of other insurance is not binding on the company, being contrary to the terms of the written policy 85 . Such an agent, it is held, has no power, after issuing a policy, to violate a condition therein by agreeing with the assured without the knowledge of the insurer for additional irfsurance in another company; notice of additional insurance to such agent is not notice to his princi- pal, and it is not bound thereby nor by such oral agreement of the agent 86 . "An agent who is only authorized to solicit and take applications for in- surance, receive the premiums and deliver the pol- icy after having been signed by the proper officers, has no authority, express or implied, to waive a breach of the policy relating to additional insur- ance." But it is said in the same case that condi- tions in a policy of insurance limiting or avoiding liability are strictly construed against the insurer and in favor of the insured. The courts, not fa- voring forfeitures, are usually inclined to take hold of any circumstances which indicate an election to 85. Union Natl. Bank v. German Ins. Co., 34 U. S. 397; 71 Fed. 473; 18 C. C. A. 203. 86. Taylor v. State Ins. Co., 98 la. 521; 67 N. W. 577; 60 A. S. R. 210. German Ins. Co. v. Heiduk, 30 Neb. 288; 46 N. W. 481; 27 A. S. R. 402. Gray v. German Co., 155 N. Y. 180 ; 49 N. E. 675. Bourgeois v. Mutual Co., 86 Wis. 402; 58 N. W. 38. Robinson v. Fire Assoc., 63 Mich. 90; 29 N. W. 521. Hale v. Mech. Co.. 6 Gray 169; 66 A. D. 410. Allemanla Co. v. Kurd, 37 Mich. 11; 26 A. R. 491. INSURANCE. 301 waive the forfeiture. A waiver may be created by acts, conduct or declarations insufficient to cre- ate a technical estoppel. If the company, with knowledge of the breach, enters into negotiations or transactions with the assured which recognize and treat the policy as still in force, or induces the assured to incur expense or trouble, it will be regarded as having waived the right to a forfeit- ure 87 . Sec. 300. A policy in a Michigan case pro- vided that the agent of the insurer had no author- ity to waive, modify or strike from the policy any of the printed conditions, and procuring addi- tional insurance rendered the policy void unless the consent of the company was written on the pol- icy. The insured obtained further insurance upon the statement of the company's agent that it would make no difference in his policy. The court held the act of the agent no waiver of the condition, saying that he had no right to contract with the assured so as to change the conditions of the pol- icy or to dispense with the performance of any es- sential requisite contained therein, either by parol or in writing; and the holder of the policy is es- topped by accepting it from setting up or relying upon powers in the agent in opposition to limita- tions and restrictions in the policy 88 . The hold- 87. Queen Ins. Co. v. Young, 86 Ala. 424; 5 So. 116; 1 A. S. R. 55. citing. Titus v. Glens Falls Co., 81 N. T. 410. Bartholomew v. Merchants Co., 25 la, 507. Hamilton v. Aurora Co., 15 Mo. App. 59. Liverpool Co. v. Sorsby, 60 Miss. 302. 88. Cleaver v. Traders Co., 65 Mich. 527 ; 32 N. W. 660 ; 8 A. S. R. 908, citing: Merseran v. Phoenix Co, 66 N. Y. 274. Catoir v. American Co., 33 N. J. L. 487. But see this case cited infra this subdivision. 302 THE LAW OF WAIVER. ings of the courts upon this subject, however, are far from uniform. But an examination of the cases will disclose that the difference between the two lines of authorities turns more upon the con- struction of the clause restricting the authority of an agent and upon determining how far his acts shall be binding upon the company, since it is usually his acts that are involved, than it does upon establishing a principle of waiver by the insurer. However, a less reconcilable position is taken by the courts on the effect of a failure to endorse on the policy a consent to additional insurance where the policy requires such indorsement to make the consent binding on the insurer. Sec. 301. We think that the better and more reasonable rule, and the one sustained by the weight of authority is that an agent authorized to solicit insurance, countersign and deliver policies and collect premiums, may consent to the procuring of additional insurance and that such consent amounts to a waiver of a clause in the policy pro- hibiting the procuring of further insurance and that such waiver is binding on the insurer whether indorsed on the policy or not 89 . As is said in May on Insurance, Art. 370: While the old rule re- quired the consent to be in writing and endorsed on the policy, it is the decided tendency of the mod- ern cases to hold that if notice of the additional in- surance be duly given to the company or its agent, and no objection is made, the company will be es- topped from insisting on a forfeiture of the policy because their consent thereto was not indorsed as literally required by the stipulation. Knowledge of other subsequent insurance and conduct in- 39. Crescent Ins. Co. v. Griffin, 59 Tex. 509. INSURANCE. 303 ducing the insured to believe that the first policy is still valid, constitute a waiver of the clause against additional insurance 90 . So, if no objection is made for a reasonable time after knowledge of the additional insurance comes to the company or its agent, the clause is waived 91 , as silence is deemed a waiver 92 , and such a delay for three months has been held sufficient 93 . A statement by an agent to the insured after knowledge of addi- tional insurance that the former policy is all right, is a waiver of the forfeiture clause 94 . Sec. 302. Speaking on the subject under dis- cussion, a Texas court has well expressed the prin- ciples herein announced. "Subsequent insurance did not ipso facto annul the policy, but the com- pany might elect to give it that effect, or might waive it. Having knowledge of the facts, it was the duty of the company to manifest its intention as to this promptly, and having failed to do so, it ought to be held to have waived the right to treat the policy as null, when it knew that by the act of its own agent the insured had been led to believe that the policy was in full force. It is not so much by the force of the fact that the agent gave a verbal consent to the subsequent insurance that the appellee should be held bound, as because the com- pany itself must be held, having knowledge of what he had done, to have ratified the consent given by him, though it may not have been given in the man- ner prescribed by the policy. If the policy limited the power of the agent, it implied no limitation of 90. Martin v. Jersey City Co., 44 N. J. 273. 91. Crescent Co. v. Griffin, supra. 92. Phoenix Co. v. Spiers, 87 Ky. 285. 91. Planters Co. v. Lyons, 38 Tex. 253. 94. Combs v. Shrewsbury Co., 34 N. J. Eq. 403. 304 THE LAW OF WAIVER. the power of the company itself, and, as said by the supreme court of Michigan, in considering a condi- tion in a policy similar to those found in the policy before us: 'The condition, literally applied, would prevent any unindorsed consent by the company it- self, by instructions of its board, or by act of its officers, as effectually as by any one else. And the case seems to settle down to the simple question whether a person, who has agreed that he will only contract by writing in a certain way, precludes himself from making a parol bargain to change it. The answer is manifest. A written bargain is of no higher legal degree than a parol one. Either may vary or discharge the other, and there can be no more force in any agreement in writing not to agree by parol than a parol agreement not to agree in writing. Every such agreement is ended by the new one which contradicts it' " 95 . When the com- pany remains passive after knowledge of addi- tional insurance, the insured rests in security that he is protected and is deprived of an opportunity of fully protecting himself by obtaining insurance elsewhere. To permit a forfeiture after such pas- siveness is to legalize fraud and unfair dealing 96 . The insured must show that the agent has done some act or made some representation or remained silent when he ought to have spoken, and thereby misled the insured and induced him to rely on the policy. But when such facts are shown they amount to a waiver 97 . If the indorsement is not made upon 95. Morrison v. Insurance Co., 69 Tex. 353 ; 6 S. W. 605 ; 5 A. S. R. 63, citing: Westchester Co. v. Earle, 33 Mich. 143. American Co. v. McCrea, 8 Lea 513; 41 A. R. 647. 96. Swedish Co. v. Knutson, 67 Kans. 71 ; 72 Pac. 526 ; 100 A. S, R. 382. 37. Westchester Co. v. Earle, 33 Mich. 143. INSURANCE. 305 notice duly given of subsequent insurance, a waiver will be presumed in the absence of any dissent. Sec. 303. If a party by his silence directly leads another to act to his injury, he will not be permitted, after the injury has happened, to then allege anything to the contrary, for he who will not speak when he should will not be allowed to speak when he would 98 . In an extremely carefully con- sidered case in Wyoming, it is held that if a gen- eral insurance agent who issues the policy in suit has knowledge of, and consents to additional in- surance, but fails to indorse such consent on the policy, and through neglect fails to notify his com- pany thereof, and its adjuster, after a loss and with knowledge of such additional insurance, and without objection thereto seeks to adjust the loss, the company is estopped to insist on a forfeiture by reason of such additional insurance". And fail- ure of an insurer to cancel its policy after receiving notice of a breach of the condition against addi- tional insurance is evidence from which a waiver of the right of forfeiture may be inferred, espe- cially when an attempted cancellation of the policy is based upon another ground of forfeiture 100 . So, collecting premiums after knowledge of such a breach is a waiver 1 . Upon a second appeal of the 98. Pelkington v. National Co., 55 Mo. 176. Horwitz v. Equitable Co., 40 Mo. 557 ; 93 A. D. 321. Gans v. St. Paul Co., 43 Was. Ill ; 28 A. R. 535. 99. Kahn v. Traders Ins. Co., 4 Wyo. 419 ; 34 Pac. 1059 ; 62 A. S. R. 47. 2 May, Insurance 370. Carrugi v. Atlantic Co., 40 Ga. 140 ; 2 A. S. R. 567. Weed v. London Co., 116 N. T. 106; 22 N. E. 229. 100. Phoenix Ins. Co. v. Holcomb, 57 Neb. 622; 78 N. W. 300; 73 A. S. R. 532. Slobdisky v. Phoenix Co., 52 Neb. 395 ; 72 N. W. 483. 1. liutz v. Anchor Co., 120 la. 136 ; 94 N. W. 274 ; 98 A. S. R. 149, dtlng: Ruthven v. American Co., 102 la. 550 ; 7 N. W. 574. 306 THE LAW OF WAIVER. case of Cleaver v. Trader's Ins. Co., cited in sec- tion 300 hereof, it is held that the insurer waives a breach of this condition when, after notice, it fails to notify the insured of its intention to insist upon a forfeiture 2 . Such, we think, is the better rule 3 . C. PAYMENT OF PBEMIUM (1) BEFORE DELIVEEY OF POLICY (a) IN GENERAL: Sec. 304. It is customary among insurance companies to authorize their agents who solicit insurance and deliver policies, to collect the premiums due therefor. The usual form of policy so delivered provides that it shall not take effect until the actual payment of such premium, or that it shall be void in case payment shall not be made as it provides. Such provisions are solely for the benefit of the insurer and are valid and such as it has a right to insist upon. The insured is bound to take notice of this condition, and in the absence of any extenuating circumstances he fails to comply with it at his peril. But like any other similar right belonging to the insurer, prepay- ment of the premium may be waived by it, and here, too, a waiver may be shown by evidence of any 2. Cleaver v. Traders Ins. Co., 71 Mich. 414; 39 N. W. 571; IB A. S. R. 275. 3. Grubbs v. N. Car. Home Co.. 108 N. Car. 472; 13 S. E. 236; 23 A. S. R. 62. Oshkosh v. Germania Co.. 71 Wis. 545; 37 N. W. 819; 5 A. S. R. 233. Fishbeck v. Phoenix Co., 54 Cal. 422. Penn F. Co. v. Kittle, 39 Mich. 51. Mut Co. v. Ward, 95 Va. 231; 28 S. E. 209. Bigelow v. Granite Co., 94 Me. 39; 46 Atl. 808. Rathbone v. City Co., 31 Conn. 193. Thompson v. Traders Co., 169 Mo. 12; 68 S. W. 889. West v. Norwich Co., 10 Utah 442 ; 37 Pac. 685. Schomer v. Hekla Co., 50 Wis. 575 ; 7 N. W. 544. Henschel v. Oregon Co., 4 Wash. 476 ; 31 Pac. 332, 765. Phoenix Co. v. Johnston, 143 111. 106 ; 32 N. E. 429. INSURANCE. 307 words or acts manifesting an intention not to in- sist on such payment, or misleading the insured into a belief that his policy is valid and subsisting even though it is not paid for according to its pro- visions. And such waiver may be made either orally or in writing by a regular agent of the com- pany authorized to collect premiums, notwithstand- ing a statement in the policy that no agent shall waive any condition unless such waiver be indorsed on the policy. Sec. 305. An express provision in a policy of insurance that the company shall not be liable on the policy until the premium be actually paid is waived by an unconditional delivery of the policy to the assured as a completed and executed contract under an express or implied agreement that a credit shall be given for the premium and in such case the company is liable for a loss which may occur during the period of the credit 4 . And the assured is not bound to take notice of conditions in the policy that the premium must be actually paid, nor of the pro- vision that the waiver of condition must be indorsed on the policy when the policy is executed and de- livered to him as a valid and completed contract by an agent having authority to countersign, and who, before or at the time of delivery of it has given the assured credit by parol; and if a loss occurs before the credit expires, the company is bound not- 4. Farnum v. Phoenix Co., 83 Cal. 246 ; 23 Pac. 869 ; 17 A. S. R. 233, citing: Boehen v. Williamsburg Co., 35 N. Y. 131; 90 A. D. 787. Church v. Lafayette Co., 66 N. Y. 222. Latoix v. Germania Co., 27 La. Ann. 113. Miss. Val. Co. v. Neyland, 9 Bush 439. Heaton v. Manhattan Co., 7 R. I. 506. Eagan v. Aetna Co., 10 W. Va. 583. O'Brien v. Union Mut. Co., 22 Fed. 586. Knickerbocker Co. v. Norton, 96 U. S. 234. 308 THE LAW OF WAIVEB. withstanding the agreement for credit was not in- dorsed on the policy 5 . It will be seen, however, that in such cases it is the act of delivering the policy evidencing an intention that it shall take ef- fect as a contract of insurance which constitutes the waiver, for in the absence of such delivery and in- tent there can be no waiver. Up to the time of such delivery the agreement for credit is merely a per- sonal one between the agent and the assured which the former may cancel at any time before consum- mation of the contract by delivery of the policy 6 . Sec. 306. And the delivery of a policy without condition and without exacting payment of the premium in cash raises a presumption that credit was given 7 . It is said that a contract of insurance is complete when the assured makes application for insurance, the application is accepted, the policy filled out in duplicate, and the applicant's name en- tered on the books of the company as being insured ; and if he is not required at that time to pay the premium, or notified of a stipulation in the policy requiring such payment as a condition precedent to its binding force upon the company, the latter will be deemed to have waived such condition 8 , and the practice or general usage of the company not to re- quire payment at the time of delivery may be shown 6. Id. Young v. Hartford Co., 45 la. 377; 24 A. R. 784. Wright v. Hartford Co., 36 Wis. 522. Sheldon v. Conn. Mut. Co., 25 Conn. 207. Griffith v. N. Y. Life, 101 Cal. 627 ; 36 Pac. 113 ; 40 A. S. R. 96. 6. Griffith v. N. Y. Life, supra. 1. Am. Emp. Co. v. Fordyce, 62 Ark. 562 ; 36 S. W. 1051 ; 54 A. S. R. 305. Boehen v. Williamsburg Co., 35 N. Y. 121; 90 A. D. 787, citing: Behler v. German Mut. Co., 68 Ind. 347. Miller v. Life Ins. Co., 12 Wall. 303. Little v. Ins. Co., 38 Oh. St. 110. 8. Pino v. Merchants Mut. Co., 19 La. Ann. 214 ; 92 A. D. 529. . INSURANCE. 309 to establish such waiver 9 ; but the rule permitting proof of waiver by showing a general custom to de- liver policies without pre-payment of the premium has been denied 10 . Where it is the custom of insur- ance companies to give their agents time to pay over premiums on policies, and the agent to credit the insured therefor, the insured becoming indebted to the agent and the agent in turn to the company, a payment according to such custom, even after a loss, will be valid, and the condition declaring the policy void for non-payment of the premium will be held waived 11 . Sec. 307. The views herein expressed are not without dissent. A comparatively late case in New York has held to the contrary, but the turning point in the case appears to be the fact that the condition making payment of the premium precedent to the taking effect of the policy and limiting the author- ity of agents was contained in the application of the insured which was signed by him, and thus brought to his notice at the very inception of his dealing with the insurer 12 . But insurance, as well as any- thing else, may be sold on credit 13 , and the great preponderance of authority supports the proposi- 9. Id. Helme v. Phila. L. Co., 61 Pa. St. 107. Gerard v. Mut. Co., 86 Pa. St. 236. Baxter v. Massoit Ins. Co., 13 Allen, 320. Union Cent. Co. v. Pottker, 33 Oh. St. 459. Mayer v. Mut. Co., 33 la. 344. 10. Busby v. N. A. Ins. Co., 40 Md. 572. Candee v. Citizens Co., 4 Fed. 143. Mandego v. Cent. Ins. Co.. 64 la. 134 ; 17 N. W. 656 ; 19 N. W. 877. 11. Lebanon Mut. Co. v. Hoover, 113 Pa. St. 591 ; 8 Atl. 163 ; 57 A. R. 511. 12. Russell v. Prudential Co., 176 N. Y. 178 ; 68 N. E. 252 ; 98 A. S. R. 657. 13. Wood on Insurance, Sec. 28. May on Insurance, Sec. 360 D. Insurance Co. v. Colt, 20 Wall. 560. 310 THE LAW OF WAIVER. tion first stated, that the condition in a policy of in- surance that the policy shall not become effective till the premium is paid and denying to agents the authority to waive any of its conditions other than by written endorsement on such policy, may be waived by the agent of the company and that such waiver occurs when the policy is delivered to the in- sured without exacting payment of the premium 14 . <2) AFTEE DELIVERY OF POLICY- (a) THEORY THAT PAYMENT AT MA- TURITY MAY BE WAIVED: Sec. 308. While there is some dissent from the proposition, the de- cided weight of authority is to the effect that where a policy has been in existence as a binding contract of insurance, payment of the premium, or an install- ment thereof falling due thereafter, may be waived by the company or its authorized agents, even in the face of a provision in the policy that failure to make payment at its maturity shall render the policy void. When such waiver occurs, the insurance re- mains in force, and a variety of facts and circum- stances have been held sufficient to produce this re- sult. Thus, where an insurer issued a circular to the effect that it would not insist on a forfeiture for non-payment of interest on a premium, such notice 14. Washoe Mfg. Co. v. Hibemia Co., 66 N. Y. 613; 7 Hun. 74. Universal Co. v. Blo^fc, 109 Pa. St. 535. Equitable Co. v. McCrea, 6 Lea 541 (Tcnn.). Carson v. German Co., 62 la. 433 ; 17 N. W. 650. Tenant v. Traveler's Co., 31 Fed. 322 (Col ). East Tex. v. Mims, 1 Tex. Civ. Cas., Art. 1323. Gosch v. State Mutual, 44 111. App. 263. Kerlin v. Natl. Assoc., 8 Ind. App. 628; 36 N. E. 156. Stepp v. Nat'l. Assoc:. 37 S. C. 417 ; 16 S. E. 134. Wytheville Co. v. Feiger, 90 Va. 277; 18 S. E. 195. Ball Co. v. Aurora Co., 20 Fed. 232. Jones v. Aetna Co., Fed. Cas. 7453. Potter v. Phoenix Co., 63 Fed. 382. Daft v. Drew, 40 111. App. 266. INSURANCE. 311 constituted' a waiver of any right to a forfeiture for failure to make such, payment 15 . So, consent of the insurer to an extension of time to make payment is a waiver 16 , as is an acceptance of payment of part of an over-due premium 17 . And any act or conduct on the part of the insurer leading the insured to be- lieve that the strict letter of the condition in the policy as to payment of the premium is not to be in- sisted upon is sufficient to constitute a waiver of prompt payment 18 . In determining whether a waiver has occurred, the test is whether an insurer, by his course of dealing with the assured, or by the acts or declarations of his authorized agents, has produced in the mind of the assured an honest be- lief that the terms and conditions of the policy de- claring a forfeiture in the event of non-payment on the day and in the manner prescribed, will not be enforced, but that payment will be accepted on a subsequent day or in a different manner ; and where there is such belief, and the assured has acted upon it, the insurer will be estopped from insisting upon a forfeiture 19 . So, the issue of a certificate after an assessment is in default is a waiver of the right to a forfeiture for its non-payment 20 . An acceptance of 15. Robinson v. St. Louis Mut. Co., 7 Rep. 358 (Mo.). 16. Homer v. Guardian Co., 67 N. Y. 478. 17. Hodson v. Guardian Co., 97 Mass. 144; 93 A. D. 73. Spitz v. Mutual Co., 25 N. Y. Supp. 469. 18. So. Ins. Co. v. McCain, 96 U. S. 84. Appleton v. Phoenix Co., 59 N. H. 541. Hastings v. Brooklyn Co., 138 N. Y. 473 ; 31 N. B. 289. Steele v. Ins. Co., 3 Mo. App. 207. Protection Co. v. Poote, 79 111. 361. Insurance Co. v. Tullidge, 39 Oh. St. 240. Insurance Co. v. Eggleston, 96 U. S. 572. Phoenix Co. v. Doster, 106 U. S. 30 ; 1 Sup. Ct. R. 18 ; 27 L. Ed. 65. Cotton States Co. v. Lester, 62 Ga. 247. Home Prot. Co. v. Avery, 85 Ala. 348 ; 5 So. 143. 19. Bacon: Benevolent Soc. Etc., Art. 433 and cases cited. 20. Id. Roswell v. Equitable, 13 Fed. 840. 312 THE LAW OF WAIVER. a past-due payment is, of course, a waiver of any breach of condition as to payment known by the in- surer at the time 21 ; although such acceptance is not a waiver where the breach is unknown to the in- surer at the time 22 . Sec. 309. An ingenious attempt has been made in some policies to avoid a waiver of non-payment of a premium on account of acceptance of past-due premiums by a statement in the policy that such ac- ceptance shall be considered as an act of grace or courtesy on the part of the insurer and not binding as to future payments. This ingenuity has fallen short of its mark, and courts still hold the insurer to a waiver 23 . Sec. 310. A harder question to determine, how- ever, is whether the agent had authority to waive the time of payment of the premium. For it is said that the fact that the agent solicited the insurance, delivered the policy and collected the original pre- mium does not impliedly give him power to waive a forfeiture for non-payment, even if he had author- ity to collect the subsequent premiums 24 . This prin- ciple was declared in an Iowa case 25 . But there a 21. Mershon v. National, 34 la. 87. Phoenix Co. v. Lansing, 15 Neb. 494; 20 N. W. 22. Pomeroy v. Rocky Mt. Co., 9 Colo. 295 ; 12 Pac. 153. McGurk v. Met. Co., 56 Conn. 528 ; 16 Atl. 263. Rice v. N. Eng. Soc., 146 Mass. 248 ; 15 N. E. 624. Painter v. Ind. Assoc., 131 Ind. 68 ; 30 N. E. 878. Met. Co. v. Windover, 137 111. 417; 27 N. E. 538. Proelich v. Atlas Co., 47 Mo. 406. 22. Gilbert v. N. Am. Co., 23 Wend. 43. Robertson v. Met. Co., 88 N. Y. 541. McDonald v. Sup. Council, 78 Cal. 49 ; 20 Pac. 41. 23. American Co. v. Green, 57 Ga. 469. Thompson v. St. Louis Co., 52 Mo. 469. 24. Met. Co. v. McGrath, 52 N. J. L. 318; 19 Atl. 386. Union Co. v. McMullen, 24 Oh. St. 67. Lewis v. Phoenix Co., 44 Conn. 72. Maryland v. Royal Co., 71 Pa. St. 393. 25. Critchett v. Am. Ins. Co., 53 la. 404 ; 5 N. W. 543 ; 36 A. S. R. 230. INSURANCE. 313 dissenting opinion was entered by Beck, J., wherein better reasons were given, in the writer's opinion, than those held to by a majority of the court. In the dissenting opinion it was said : ' ' The agent was authorized to collect the premiums. It cannot be doubted that if the plaintiff had paid to the agent the premium after default, the policy would have again attached. The agent could have enforced the payment under the terms of the policy. Thus far he was clothed with authority upon the exercise of which, at his discretion, depended the binding force of the policy. His authority to collect the premium could be exercised in such a manner and at such times as the interest of the defendant, determined by the agent, required. Surely the authority to col- lect the premium was not so limited that it could not have been exercised after a default by the plain- tiff." Sec. 311. The rule is general among the courts, however, that if an agent collect a premium after it is due and forward it to the company which accepts it with knowledge that it is over-due and that a for- feiture for that reason might be invoked, such act of the agent is a waiver of the delay in payment, and the acceptance by the company is a ratification of the waiver. And in such case it is of no consequence whether or not the agent had power to waive the condition in the first instance 26 . (b) BY CUSTOM: Sec. 312. The decisions are inharmonious as to whether evidence of a cus- tom or practice among insurance companies to re- ceive payment of premiums after their maturity 26. Walls v. Home Ins. Co., 114 Ky. 611; 71 S. W. 650. Piedmont Co. v. Lester, 59 Ga. 812. Cronln v. Fire Assoc., 119 Mich. 74 ; 77 N. W. 648. Chicago Co. v. Ford, 104 Tenn. 533; 58 S. W. 239. 314 THE LAW OF WAIVER. may be shown to establish a waiver of a breach of the condition as to such payment. It is thought, however, that one of the main ingredients which permeates the whole field and phase of the law of Waiver is applicable here : That any conduct of one party calculated to lull the other into a feeling of security and belief that a right of the former would not be insisted upon may be shown to establish a waiver of that right. So, if the practice of the com- pany and its course of dealings with the assured and others known to the assured have been such as to induce a belief that so much of the conduct as provided for a forfeiture in the event of non-pay- ment of the premium will not be insisted upon, the company cannot urge a forfeiture for such non-pay- ment 27 . This is especially true if the company has been in the habit of accepting and retaining belated payment of premiums 28 , although it is held other- wise if such acceptance is conditional 29 . Sec. 313. There are a few cases holding con- trary to the foregoing principles 30 , but the weight 27. 2 May, Insurance, 361. Lebanon Mut. Go. v. Hoover, 113 Pa. St. 591 ; 8 Atl. 163. Frankle v. Pa. Fire Co., 12 Ins. L. J. 614 (Col.). 28. Stylow v. Wisconsin Co., 69 Wis. 224; 34 N. W. 151. Longbridge v. la. Mut., 84 la. 141; 50 N. W. 668. Grossman v. Mass. B. A., 143 Mass. 435 ; 9 N. E. 753. Spoeri v. Mass. B. A., 39 Fed. 752. McCorkle v. Tex. Ben. A., 71 Tex. 149; 8 S. W. 516. Odd. F. Assoc. v. Swetzer, 117 Ind. 97; 19 N. E. 722. Brooklyn Co. v. Bledstone, 25 Ala. 538. Appleton v. Phoenix Co., 59 N. H. 541. Ala. Gold Co. v. Garmany, 74 Ga. 51. Helme v. Ins. Co., 61 Pa. St. 107. Mound City Co. v. Twining, 19 Kans. 349. Hartford Co. v. Nussell, 144 U. S. 439; 12 Supt. Ct. R. 617; 36 L. Ed. 496. 29. Lewis v. Phoenix Co., 44 Conn. 73. 30. Mandego v. Centen. Co.. 64 la. 134 ; 17 N. W. 656 ; 19 N. W. 877. Brown v. Mass. Mut., 59 N. H. 298. Ormond v. Ins. Co.. 96 N. Car. 158 ; 1 S. E. 796. Hambleton v. Home Co., 6 Biss. 94 (U. S.). INSURANCE. 315 of authority is so decided that it is not deemed ad- visable to take further note of these. (3) WAIVER OF CASH PAYMENT : Sec. 314. A general agent of an insurance company, whose business it is to solicit applications for in- surance and receive first premiums, has the right to waive the condition requiring payment in money, and to accept the promissory note of the applicant or of a third party in lieu thereof, or to undertake to make payment to the company himself ; and when the cash payment is actually waived in either of these modes, the contract binds the company not- withstanding the recital in the policy that it is not binding until the first premium is paid in cash 31 . And an agent authorized to collect premiums may exercise his discretion in such collection and accept a check or note in lieu of money and thereby the company will be bound even in the face of a con- trary provision in the policy 32 . There is no good reason why insurance may not be sold on credit the same as any other property. And where a policy is delivered without exacting payment, the assumption is that credit is extended and the policy is valid 33 , even contrary to the express provision in the pol- icy 34 . 31. Valley Life Co. v. Neyland. 9 Bush 430. Insurance Co. v. Colt, 20 Wall. 560. Bragdon v. Ins. Co.. 42 Me. 262. Wood v. Poughkeepsie Co., 32 N. T. 619. 32. Taylor v. Merchants Co., 9 How. 390 (U. S.). 33. Latoix v. Germania Co.. 27 La. Ann. 113. Miller v. Insurance Co., 12 Wall. 285. Insurance Co. v. Colt, 20 Wall. 560 (U. S.). 84. Home Co. v. Oilman. 112 Ind. 7 : 32 N. E. 118. Mut. Ben. Co. v. French, 30 Oh. St. 240. Pitt v. Berkshire Co.. 100 Mass. 500. Mowry v. Home Co., 9 R. I. 346. 316 THE LAW OF WAIVEB. 3. FORFEITURES A. IN GENERAL: Sec. 315. The conditions inserted in an insurance policy and hereinbefore considered are for the benefit of the insurer and may be insisted upon by it and performance to their strict letter exacted. Any default in compliance with such conditions renders the policy void not ipso facto void but according to the better view, the insurer has the right to declare it no longer in force. Forfeitures are odious to the law and will never be enforced unless there is the clearest evidence that such was the intention of the parties. And if an in- surance company, after knowledge of any default for which it might terminate the contract of insur- ance, enters into negotiations or transactions with the assured which recognize the continued validity of the policy, and treat it as still in force, the right to claim a forfeiture for such previous default is waived 35 . So, the majority of the courts hold that it is the duty of the insurer to take action when a cause for forfeiture comes to its knowledge, and that it must use reasonable diligence in manifesting an intention to rely on the forfeiture. And if it fails to notify the insured that it elects to hold him to the forfeiture, its lack of such action may right- fully be taken by the insured as conclusive of the fact that the forfeiture is not to be insisted upon. So, if a company accept payment of premiums after knowledge of its right to declare a forfeiture, the 35. Conigland v. N. Car. Co., Phill. Eq. 341 ; 98 A. D. 89. Murray v. Home Ben. AB. ( 90 Cal. 402; 27 Pac. 309; 25 A. S. R. 133, citing: Viele v. Germania Co.. 26 la. 9 : 96 A. D. 83. Queen Ins. Co. v. Young, 86 Ala. 424; 11 A. S. R. 51 ; 5 So. 116. Titus v. Glens Falls Co., 81 N. T. 419. INSURANCE. 317 forfeiture is thereby waived 36 . This effect also fol- lows a failure to cancel a policy for a reasonable time after knowledge of a cause for forfeiture has been brought home to the insurer 37 . Sec. 316. It has been held, however, that a breach of any of the conditions of a policy by the insured ipso facto annulled the insurance in the ab- sence of any affirmative action of the insurer to re- vive it 38 . But such doctrine is not well reasoned nor well supported. In this connection, as in the waiver of any condition as before considered, knowledge of a cause for declaring a forfeiture brought home to an agent is imputed to his principal, and is bind- ing upon it 39 . B. INDORSEMENT OF WAIVER ON POL- ICY : Sec. 317. Policies of insurance provide that no waiver shall be binding upon the insurer unless by indorsement of same on the policy. Much dif- ficulty has been experienced by the courts in deter- mining whether a cause for forfeiture may be waived in any other manner in the face of this pro- vision. It was early held in California that it could 36. Ins. Co. v. Norton, 96 U. S. 234. Nat'l. Assoc. v. Jones, 84 Ky. 110. Germania Co. v. Hick, 125 111. 351 ; 17 N. E. 792 ; 8 A. S. R. 384. Bankers Assoc. v. Stapp, 77 Tex. 517; 14 S. W. 168; 19 A. S. R 772. Millard v. Sup. Council, 81 Cal. 340; 22 Pac. 864. Tobin v. West. Aid Soc., 72 la. 261; 33 N. W. 663. American Soc. v. Helburn. 85 Ky. 1 ; 2 S. W. 495 ; 7 A. S. R. 571. Rice v. N. Eng. Soc., 146 Mass. 249 ; 15 N. E. 624. Rindge v. N. Eng. Soc., 146 Mass. 286; 15 N. E. 628. 37. Hanover Co. v. Dole, 20 Ind. App. 333 ; 50 N. E. 429. Nedrow v. Farmer's Co., 43 la. 24. Phoenix Co. v. Coomes, 14 Ky. L. R. 603 ; 20 S. W. 900. 88. Johnson v. American Co., 41 Minn. 396; 43 N. W. 59. West End Co. v. American Co., 74 Fed. 114. 89. Norris v. Hartford Co., 57 S. Car. 358; 35 S. E. 672. Anthony v. Ger.-Am. Co., 48 Mo. App. 65. Eagle Co. v. Globe Co.. 44 Neb. 380; 62 N. W. 895. Phoenix Co. v. Coffman, 10 Tex. Civ. App. 631; 32 S. W. 810. 318 THE LAW OF WAIVER. not 40 ; although the reverse doctrine is now adhered to 41 . And several states have held in effect that even if the agent had power to waive conditions in a policy, no notice given to him or agreement made by him as to a forfeiture can have any binding ef- fect unless the waiver is indorsed on the policy 42 . Sec. 318. But the weight of authority is in sup- port of a contrary doctrine. The agent effecting the insurance, delivering the policies and collecting the premiums is the representative of the company. He gets his pay in commissions from it. And as in all other classes of agencies, his knowledge is that of his principal, and his acts are binding upon it if per- formed while in the discharge or furtherance of the business intrusted to him. Usually he is the only one in the community to whom those insured may look in transactions relating to the insurance. In fact, as far as the insured is concerned, he is the company, with full power to deal in insurance. So, therefore, where the insured gives all necessary in- formation to the agent and makes known to him any cause for which the policy might be forfeited, a waiver by the agent is binding on the insurer 40. Enos v. Sun Co.. 67 Cal. 621 ; 8 Pac. 379. 41. Wheaton v. N. Brit. Co.. 76 Cal. 415; 18 Pac. 758;- 9 A. S. R 216. 42. Melga v. London Co.. 126 Fed. 781. Liverpool Co. v. Richardson. 11 Okla. 585; 69 Pac. 938. Moore v. Hanover Co., 141 N. Y. 219; 36 N. E. 191. Manchester v. Guardian Co., 151 N. Y. 88 ; 45 N. E. 381 ; 56 A. S. R. 600. Pendar v. American Co., 12 Gush. 469. Egan v. Westchester Co., 28 Oreg. 289 ; 42 Pac. 611. INSUEANCS. 319 whether the agent indorsed such waiver on the pol- icy or failed and neglected to do so 43 . 4. NOTICE OF LOSS : Sec. 319. Insurance policies contain provisions that after a loss notice thereof must be given to the insurer within a speci- fied time and in a designated manner. The giving of such notice is a condition precedent to the right of recovery, and a failure to perform the condition in the specified time or manner defeats all right to recover on the policy. The condition may also be contained in the charter of the company with like effect. But it is said that where such notice is re- quired, failure to give it in the designated time or manner is not a cause for forfeiture unless spe- cifically so provided 44 . A. SILENCE OF INSURER, OR FAILURE TO OBJECT NOT A WAIVER: Sec. 320. Fre- quently the question arises as to what effect is to be given to the conduct of an insurer in remaining silent or raising no objection to the delinquency of the insured in serving upon the insurer, within the specified time, notice of a loss under the policy. It is said that no duty to speak devolves upon the in- surer when the insured is in default in the perform- ance of this condition, either by his failure to give the notice in time or to give it at all. "Whether the company is silent or makes objection cannot alter 43. Morrison v. Ins. Co., 69 Tex. 353 ; 6 S. W. 605 ; 5 A. S. R. 63. Hartford Co. v. Landfare, 63 Neb. 559; 88 N. W. 779. Morgan v. Illinois Co.. 130 Mich. 427; 90 N. W. 40. Maryland Co. v. Gusdorf, 43 Md. 506. Liquid Mfg. Co. v. Phoenix Co., 126 la. 225 ; 101 N. W. 749. Barnard v. National Co., 38 Mo. App. 106. Mentz v. Lancaster Co., 79 Pa. St. 475. PlK>enix Co. v. Hart, 149 111. 515; 39 111. App. 517; 36 N. E. 990. Refstrake v. Cumberland Co., 44 N. J. L. 294. Penn. Co. v. Faires, 13 Tex. Civ. App. Ill ; 35 S. W. 55. 44. Coventry Co. v. Evans, 102 Pa. St. 281. 320 THE LAW of WAIVER. the right of the parties. If the notice is too late, there is an end to the matter. The want of such a notice cannot be supplied. Of what avail to the assured to be told that the notice was insufficient? that it was too late? How could the silence of the insurance company be construed as an admission that the notice was in time? It was not the duty of the insurance company to make any objection to the want of notice. It was made the duty of the assured to give the notice, and neither silence on the part of the company nor positive objections would alter its character or sufficiency" 45 . Under a written provi- sion of a policy that written notice of a loss should be given within twenty days after its occurrence, an oral notice to the company's agent within the time, followed by a written notice to the company after the time, was held not to be a compliance with the condition, and a neglect of the company to ob- ject did not waive its right to defend on account of such non-compliance with the condition 46 . So, the remark of the president of the company, made sev- enteen months after a loss, that the company would be disposed to do what was right, and that they knew at the time of the fire that it was their loss and were surprised that they were not notified, was held not a waiver of the condition requiring notice of loss within thirty days 47 . Nor does a waiver occur where the insurer, after receiving a belated notice of a loss, gives to the insured directions about making out a statement of his loss, and has its agent make an investigation as to the same 48 . 45. St. Louis Ins. Co. v. Kyle, 11 Mo. 278; 49 A. D. 74. Knickerbocker Co. v. Gould, 80 111. 388. 46. Cornell v. Milwaukee Co., 18 Wls. 393. 47. Smith v. Haverhlll Mut. Co., 1 Allen 297 ; 79 A. D. 733. 48. Trask v. State F. & M. Co.. 29 Pa. St. 198; 72 A. D. 62*. INSURANCE. 321 And it is said that a waiver of this condition does not occur where the agent of the insurer, having knowledge of a loss, informs the insured that the company is attending to it and that it can be col- lected, if the policy declares that no agent shall have power to waive a breach of this condition 49 . Sec. 321. This is in line with those authorities holding that agents for the purpose of soliciting in- surance, delivering policies and collecting premiums are not agents for the purpose of receiving notice or adjusting losses, such cases holding that notice to the agent of a loss is not notice to the insurer 50 . After the insured had failed and neglected to forward notice of a loss within the required time, he sent proofs of the loss to the general manager of the company who retained the proofs but notified the insured that the company denied all liability under the policy, and this was held no waiver of the failure of the insured to give the notice within the required time 51 . So, a vote of the directors of the company to indefinitely postpone consideration of a loss is no waiver of a breach of the condition 52 . B. CONTEAEY VIEW: Sec. 322. But a great contrariety of opinion exists as to the sub- ject here being considered, and the authorities are rather equally divided. As opposed to the views hereinbefore expressed, it is said that the insertion of the condition in the contract requiring notice of 49. Quinlan v. Providence Co., 133 N. T. 356; 31 N. B. 31; 28 A. 8. R. 645. Titus v. Glens Falls Co.. 81 N. T. 411. 60. Bowlin v. Hekla Ins. Co., 36 Minn. 433 ; 31 N. W. 859. Shapiro v. Western Co.. 51 Minn. 239 ; 53 N. W. 463. Shapiro v. St. Paul Co., 63 N. W. 614 (Minn.). SI. Ermentrout v. Glrard Co., 63 Minn. 305; 65 N. W. 6S5; A. 346. 12. Patrick v. Farmers Co.. 43 N. H. 621 ; 80 A. D. 197. 322 THE LAW OF WAIVER. a loss in a certain time is for the advantage of the insurer and may be insisted upon by it or waived at its option; and that a waiver will be inferred from any conduct of the insurer manifesting an in- tention not to insist upon the forfeiture on account of the absence of such notice. Thus, after a failure to transmit notice as required by the policy, proofs were sent to the insurer which were received by it and others called for, such conduct being consistent only with an intention to consider the contract as still in force, the breach of condition as to notice was held waived 53 . Also, it was waived where the company furnished blanks upon which to make the proofs 54 , accepted the proofs of loss 55 , or required further proofs or information 56 , or paid part of the amount due under the policy 57 , made an examination and a schedule of the burned property 58 , sent an agent to adjust the loss 59 . And it is said that it makes no difference whether the notice is required by statute, charter or by the policy, the provision is still for the benefit of the in- surer and may be waived by it 60 . Such waivers, it is said, may be made by an adjusting agent, even though the policy provide that no act or statement of an agent shall be binding upon the insurer 61 . 53. Trippe u. Provident Soc., 140 N. Y. 23; 35 N. B. 316: 28 L. R. A, 432. 54. Traveler's Co. v. Edwards, 122 U. S. 457; 30 L. Ed. 1178. 65. Nuthank v. Traveler's Co., 4 Biss. 357. Jones v. Howard Ins. Co., 117 N. Y. 103; 22 N. E. 578. 56. Titus v. Glens Falls Co., 81 N. Y. 410. Armstrong v. Agr. Co., 130 N. Y. 560 ; 29 N. E. 991. 57. Westlake v. St. Lawrence Co., 14 Barb. 206. 58. Badger v. Glens Palls Co., 49 Wis. 389 ; 5 N. W. 845. Beatty v. Lycomlng, 66 Pa. St. 9. 59. Honie Ins. Co. v. Myer. 98 111. 271. 60. Lewis v. Monmouth Co., 52 Me. 492. 61. Stevens v. Citizens Co., 69 la. 658 ; 29 N. W. 769. INSURANCE. 323 C. DISTINCTION BETWEEN NOTICE OUT OF TIME AND NOTICE DEFECTIVE IN FOEM: Sec, 323. It is asserted that failing to give the required notice, or giving it out of time, stands on a different footing from the giving of notice in a different form from that required by the policy ; and while there is a difference of opinion as to waiving the requirements as to the time of giv- ing notice the authorities are quite distinct that if the notice given is defective or erroneous, and the company put its refusal to pay on other grounds, such is a waiver of the condition as to notice 62 , and that an objection on account of error in the notice, not made till the trial, was held to be waived 63 . The Patrick case above cited is comparatively an early case involving this subject, but its reasoning is sound. The opinion states: "A de- fect in the time of notice stands on different ground from a defect in its matter; while the last, upon notice, may be remedied, it is otherwise with the former, which is necessarily irremediable if the in- surer chooses to insist upon it. It may be waived, but it would be reasonable to require a different kind of evidence from that which ought to be satis- factory in cases of mere defect in form. The silence of an insurance company, upon a defect in form of the notice, might be very injurious to the insured, but it is not at once seen how the assured 62. Patrick v. Farmers Co., 43 N. H. 621; 80 A. D. 197, citing: Bumstead v. Dividend Co., 12 N. Y. 81. Schenk v. Mercer Co., 24 N. J. L. 447. Bilbrough v. Met. Co., 5 Duer, 587. 63. Id. Kernochan v. N. Y. Bowery Co., 17 N. Y. 428. Clark v. N. Ens:. Ins. Co., fi Gush. 342 ; 53 A. D. 44. Peoria M. Co. v. Lewis, 18 111. 553. Underbill v. Agawam Co., 6 Gush. 495. Noyes v. Washington Co., 30 Vt. 659. 324 THE LAW OF WAIVER. could be benefitted by notice that he had failed to give information of his loss within the stipulated time, or how he could be prejudiced by the omis- sion." 64 . 5. PROOFS OF LOSS: A. FAILURE TO FILE ANY PROOFS (1) IN GENERAL: Sec. 324. Nearly all policies of insurance, whether of property or of life, require that proof of loss under the policy shall be made within a designated time, with the pro- viso that if same be not made in the required time no liability shall attach to the insurer. This pro- vision is permissible under the law and when ac- cepted by the insured is binding upon him. But it is a condition imposed for the sole benefit of the insurer, and it has the option of insisting upon the requirement or waiving it as it sees fit. And when a loss has occurred, and there is such conduct on the part of the insurer or its authorized agent as induces the assured reasonably to believe that proofs of loss were not to be demanded, and he, act- ing under such belief, fails to furnish such proof or to furnish it in the required time, his default or delinquency is waived by the insurer 65 . What- ever difference may exist among the courts as to a waiver of the provision requiring the assured to give notice of a loss, nearly all the authorities agree that the condition as to furnishing proofs of loss may be waived either expressly or by acts and con- duct of the insurer or its agent, and that such waiver may be inferred from any acts or conduct 64. Patrick v. Farmers Ins. Co., supra. 66. Hartford Co. v. Keating. 86 Md. 130 ; 38 Atl. 29 ; 63 A. S. R. 499. INSUKANCE. 325 inconsistent with an intention to insist on a strict compliance with the condition 66 . (2) BY DENIAL OF LIABILITY : Sec. 325. It is a general rule, subject to but few exceptions, that if the insurer, prior to the time limited for sub- mitting proofs of loss by the insured, denies any liability under the policy, such denial constitutes a waiver of the requirement of the policy as to sub- mitting such proof 67 . Thus, where an insurer, with knowledge of a loss under a policy, refuses to pay the loss under a contention that the policy was not in force at the time of the loss, the necessity of furnishing proofs of the loss is dispensed with 68 . And where the agent of the insurer examined at the place of the loss the facts connected with it and told the assured that he could not recommend payment of the loss for certain reasons, this was held a denial of liability and a waiver of the proofs of loss 69 ; and a denial of liability on account of the presence of benzine on the premises has the same effect 70 . So, a denial of liability on the 66. Rokes v. Amazon Co., 51 Md. 512; 34 A. R. 323. 67. German-Am. Co. v. Norris, 100 Ky. 29; 37 S. W. 267; 66 A. S. R. 324. Wilson v. Com. Union Co., 51 S. Car. 540; 29 S. E. 245; 64 A. S. R. 700. Commercial Co. v. State, 113 Ind. 331 ; 15 N. B. 518. Savage v. Phoenix Co., 12 Mont. 458; 31 Pac. 66; 33 A. S. R. 591. Phoenix Co. v. Bachelder, 32 Neb. 490 ; 62 N. W. 911 ; 29 A. S. R. 443. Stepp v. Nat'l. Assoc., 37 S. Car. 444; 16 S. E. 134. 68. Rochester Loan Co. v. Liberty Ins. Co., 44 Neb. 537; 62 N. W. 877; 48 A. S. R. 745. Faust v. American Co., 91 Wis. 158 ; 64 N. W. 883 ; 51 A; S. R. 876; 30 L. R. A. 783. Roe v. Dwelling H. Co., 149 Pa. St. 94; 23 Atl. 718; 34 A. S. R. 595. 69. McBride v. Republic Co., 30 W. Bowdre, 67 Miss. 620; 7 So. 696; 19 A. S. R. 326. Insurance Co. v. Eggleston, 96 U. S. 672. Burlington Co. v. Kennerly, 60 Ark. 532 ; 31 S. W. 155. Carson v. Jersey City Co., 43 N. J. L. 800 ; 39 A. R. 584. Traveler's Co. v. Hamey, 82 Va. 949. German Co. v. Gray, 43 Kans. 497; 23 Pac. 637; 19 A. S. R. 150. 338 THE LAW OF WAIVER. the insured as to the amount of a loss, the matter shall be referred to a board of appraisers who shall determine the amount, and that such determination shall be a condition precedent to a right of action by the assured, some policies attempting to make the amount so determined conclusive. This condi- tion is for the benefit of the insurer and may be waived or insisted upon by it at its option. A waiver of the provision may be express or it may be inferred from conduct inconsistent with an inten- tion to insist upon it. Sec. 340. Thus, where the insurer refuses to pay any amount at all, the clause is waived 18 . And where the company took possession of the damaged property and proceeded to repair it, it could not later defend an action on the ground of no appraisal 19 . In one case, after a fire and within the time pre- scribed by the policy the plaintiffs furnished the de- fendant the required proofs of loss, and thereupon, without questioning or making objection to the amount of the loss claimed or to the proofs thereof, the company, for other reasons, not only denied its liability but denied the existence of the policy, claim- ing that it had been cancelled two months before the loss. This was held to be sufficient evidence that the insurer acquiesced in the amount of the loss claimed, and thereby waived its right to have it determined by arbitration 20 . And even where such arbitration is a condition precedent to the right to maintain an action on the policy, the assured, after his prof- is. Western Co. v. Putnam, 20 Neb. 331; 30 N. W. 246. 19. Cobb v. N. E. Co., 6 Gray, 192 (Mass.). 20. Farnum v. Phoenix Co., 83 Cal. 246; 23 Pac. 869; 17 A. S. R. 233. Lasher v. N. W. Co., 18 Hun 98; 35 How. Pr. 318. Mentz v. Armenia Co., 79 Pa. St. 478 ; 21 A. R. 8C. Phoenix Co. v. Badger, 53 Wis. 284; 10 N. W. 504. INSURANCE. 339 fered proofs of loss have been rejected by the in- surer without demand for an appraisal or objection to the amount of the loss as shown by such proofs, may sue for the loss without first showing an ap- praisal 21 . And a waiver likewise occurs where the assured, after a loss, demands an arbitration which is refused by the insurer 22 . So it is said that arbi- tration becomes imperative only after a written re- quest for one has been made. The request is op- tional with either party, and if neither of them takes advantage of the right to arbitrate, it must be deemed to have been waived by both 23 . And an ab- solute denial of liability is a waiver of the arbitra- tion clause 24 , although this has been differently de- cided 25 . 7. LIMITATION OF TIME TO SUE: A. WHAT CONSTITUTES A WAIVER: Sec. 341. Another clause common to policies is that providing that all right of action shall be barred un- less exercised within a certain time after a loss or after proofs of loss have been furnished. This condition is valid and binds the insured if insisted upon by the insurer or unless something is done by 21. Randall v. American Co., 10 Mont. 340; 25 Pac. 953; 24 A. S. R. 50. 22. Continental Oo. v. Wilson, 45 Kans. 250 ; 25 Pac. 629 ; 23 A. S. R. 720. Vangindertaelen v. Phoenix Co., 82 Wis. 112 ; 51 N. W. 1122 ; 33 A. S. R. 29. 23. Nurney v. Fireman's Co., 63 Mich. 633 ; 30 N. W. 350 ; 6 A. S. R. 338. Gere v. Council Bluffs Co., 67 la. 272 ; 23 N. W. 137 ; 25 N. W. 159. Wright v. Susquehanna Co.. 110 Pa. St. 29; 20 Atl. 716. 24. Wainer v. Nulford Co., 153 Mass. 235; 26 N. E. 877; 11 L. R. A. 598. Hutchinson v. Liverpool Co., 153 Mass. 143 ; 26 N. E. 439 ; 10 L. R. A. 558. German Co. v. Etherton, 25 Neb. 505 ; 41 N. W. 406. 25. Pioneer Co. v. Phoenix Co., 106 N. Car. 28; 10 S. E. 1059. 340 THE LAW OF WAIVER. it manifesting an intention or inclination not to en- force the provision. The condition is a stringent one and oftentimes oppressive npon the insured, and the inclination of the courts is to hold slight evidence sufficient to show that the insurer has elected to forego its rights thereunder. And if the course of conduct pursued by the insurer is such as to induce the insured to believe that the loss will be paid or adjusted without suit, and for this reason suit is not brought within the time prescribed in the policy, then suit may be brought after such time, for the conduct of the insurer constitutes a waiver of the limitation 26 . So, part payment of the loss produces the same result 27 , as does fraud of the insurer in holding out reasonable hopes of a settle- ment 28 , or misconduct of its agent misleading to the assured 29 . And if the acts of the insurer are such as to induce a reasonably prudent man to believe it unnecessary to bring suit, the limitation is waived 30 , as it is if the insurer promises to pay after the suit is brought 31 , or flatly refuses to pay at all 32 , or rec- 26. St. Paul Co. v. McGregor, 63 Tex. 404. Smith v. Glens Falls Co., 62 N. Y. 88. Farmers Co. v. Chestnut, 50 111. 115; 99 A. D. 492. Peorla Co. v. Hall, 12 Mich. 202. Grant v. Lexington Co., 5 Ind. 23 ; 61 A. D. 74. Killlps v. Putnam Co., 28 Wis. 472 ; 9 A. R. 506. McFarland v. Peabody Co., 6 W. Va. 425. 27. Kentucky Mut. Co. v. Turner (Ky.) ; 13 S. W. 104. 28. Mickey v. Burlington Co., 35 la. 174 ; 14 A. R. 494. Coorheis v. People's Soc., 91 Mich. 469 ; 51 N. W. 110. Little v. Phoenix Co., 123 Mass. 389; 25 A. R. 96. Martin v. Slate Co., 44 N. J. 485 ; 43 A. R. 397. 29. Jennings v. Met. Co., 148 Mass. 61; 18 N. E. 601. 80. Blsh v. Hawkeye Co., 69 la. 184; 28 N. W. 552. Black v. Winnesheik Co., 31 Wis. 74. Derrick v. Lamar Co., 74 111. 404. 31. Home Co. v. Meyer, 93 111. 272. Ames v. N. Y. Co., 14 N. Y. 253. 82. Georgia Home Co. v. Jacobs, 56 Tex. 366. State Co. v. Maackrns, 38 N. J. L. 564. Commercial Co. v. Allen, 80 Ala. 571. Aetna Co. v. Maguire, 51 111. 342. INSURANCE. 341 ognizes any liability 33 . The limitation is waived where the insurer, within the time limited, made an assignment for the benefit of creditors 34 , or sent a letter to the insured requesting him to let the mat- ter rest till the adjuster could see the attorney of the insured 35 ; or refused to permit a beneficiary in an accident policy to inspect its by-laws and mis- stated the time within which action should be brought 36 , or retained the books and papers of the assured till after the expiration of the prescribed time 37 . And this condition may be waived orally as well as in writing, notwithstanding a provision to the contrary in the policy 38 . B. ACTS NOT A WAIVER: Sec. 342. But the clause is not waived by the failure and neglect of the insurer to adjust the loss 39 , nor by mere nego- tiations 40 , nor by a promise to pay, which promise is withdrawn four months prior to the expiration of the time limited 41 , nor is silence such a waiver 42 , nor indefinite conversations about an adjustment 43 , nor where the insurer declines to enter into any negotia- tions 44 . 33. Horst V. Insurance Co., 73 Tex. 67 ; 11 S. W. 148. 34. In re St. Paul Co., 58 Minn. 163 ; 59 N. W. 996 ; 49 A. S. R. 497. 35. Turner v. Fidelity Co., 112 Mich. 425; 70 N. W. 898; 67 A. S. R. 428 ; 38 L. R. A. 529. 36. Met. Assoc. v. Froiland. 161 111. 30; 43 N. E. 766; 52 A. S. R. 359. 37. Bonnert v. Penn. Co.. 129 Pa. St. 558 ; 18 AtL 552 ; 15 A. S. R. 739. 38. Dwelling H. Co. v. Brodie, 52 Ark. 11; 11 S. W. 1016; 4 L. R. A. 458. Gladding v. California Co., 66 Cal. 6 ; 4 Pac. 764. Blake v. Exchange Co., 12 Gray 271. Franklin Co. v. Chi. Ice Co., 36 Md. 102; 11 A. R. 469. Wood, Fire Insurance, (2d Ed.) Art 525. 39. Button v. Vermont Co., 17 Vt. 369. 40. Allemania Co. v. Little, 20 Bradw. 431. 41. Garretson v. Hawkeye Co., 65 la. 468; 21 N. W. 781. 42. Schroeder v. Keystone Co., 2 Phila. 286. 43. Ripley v. Aetna Ins. Co., 30 N. T. 136; 86 A, D. 362. 44. Id. 342 THE LAW OF WAIVER. CHAPTER 13. TOETS. Section. 1. In General 343 2. Fraud and Fraudulent Representations 345 3. Conversion 348 4. Effect of Waiver 351 1. IN GENERAL: Sec. 343. If a party have a right under the law to sue either in tort or on an implied contract under the same line of facts, he will be held to have waived one by proceeding on the other. But no waiver can take place unless the party have full knowledge of all the facts and of all his rights thereunder 45 . A party may waive an action of tort and sue in assumpsit for the money which he paid on the contract or which the defend- ant has received under it ; but where part of the con- sideration was land and claims against other per- sons, a recovery for them cannot be had under a count for money had and received unless so far as the defendant may have converted them into money. If more than mere rescission is sought, the plain- tiff must sue for damages 46 . A party cannot waive a tort and bring an action in assumpsit against the tort-feasor except where the property has been converted into money or its equivalent 47 . Sec. 344. If one has taken possession of prop- erty and sold or disposed of it without lawful au- thority, the owner may either disaffirm his act and 45. Sllvey v. Tift, 123 Ga. 804; 61 S. E. 748; 1 L. R. A. (N. S.) 386. 46. Pearsoll v. Chapin. 44 Pa. St. 9. 47. Emerson v. McNamara, 41 Me. 665. Androsooggln Co. v. Metcalf, 65 Me. 40. Quimby v. Lowell, 89 Me. 547; 36 Atl. 902. TOETS. 343 treat him as a wrong-doer and sue him for a tres- pass or for a conversion of the property, or he may affirm his acts and treat him as his agent and claim the benefit of the transaction; and if he has once affirmed his acts and treated him as his agent, he cannot afterward treat him as a wrong-doer, nor can he affirm his acts in part and void them as to the rest 48 . So, if property has been disposed of by him who tortiously obtains possession of it, the tort may be waived and assumpsit maintained 49 , even though there is no positive proof as to the amount received for the property 50 . And if a passenger is injured through the negligence of a carrier, while traveling under a contract, he may waive the contract and sue in tort, or vice-versa?' 1 . 2. FRAUD AND FRAUDULENT REPRE- SENTATIONS : Sec. 345. Courts look with dis- favor upon alleged waivers of fraud or fraudulent representations inducing contracts. While it is true that such fraud may be ignored by the party enti- tled to complain of it, yet in order to show a com- plete waiver, it must clearly appear that at the time of such alleged waiver there was full knowledge of all the facts, and the acts or language of the party against whom the waiver is alleged must be abso- lutely inconsistent with any intention to take ad- vantage of his rights after such knowledge 52 . The confirmation of the act tainted with fraud must be deliberate and unequivocal. 48. Addison on Torts, 33. 49. Miller v. King, 67 Ala. 576. Doon v. Ravey, 49 Vt. 293. 50. Smith, et al. v. Jernigan, 83 Ala. 256; 3 So. 515. 51. L. S. & M. S. Ry. Co. v. Teeters. 166 Ind. 335; 77 N. E. 599; 6 L. R. A. (N. S.) 425. 52. Cumberland Coal Co. v. Sherman, 20 Md. 117. 344 THE LAW OP WAIVER. The decisions are somewhat inharmonious as to what facts and circumstances will be sufficient to amount to a waiver of fraud in the inducement of a contract. Where a defrauded vendee of property retains it after discovery of fraudulent representa- tions regarding it, he is said neither to have waived the fraud nor a right to sue for damages 53 . And merely offering the property for sale after ascer- taining the true facts is not a waiver 54 ; nor recover- ing an uncollectable judgment for the purchase- price 55 ; although selling it amounts to a waiver of the right to rescind and to sue for damages 58 . And one knowing of fraud who subsequently confirms the original contract by making new agreements regarding it or doing any other act manifesting an intention to treat it as a valid and subsisting agree- ment, waives the fraud and forfeits any equitable relief he might have had thereon 57 . But it is not a waiver to accept part payment of a purchase-price note, the vendor stating at the time that he did not waive his claim for damages on account of the de- 53. Murray v. Jennings, 42 Conn. 9. Sells v. Miss. River L. Co., 88 Wis. 581; 60 N. W. 1065. Matlock. v. Reppy, 47 Ark. 148; 14 S. W. 546. 54. Pierce v. Wilson, 34 Ala. 596. Cottrill v. Krum, 100 Mo. 397; 13 S. W. 753. 55. Standard S. M. Co. v. Owings, 140 N. Car. 503; 53 S. E. 345; 8 L. R. A. (N. S.) 582. 56. Baker v. Maxwell, 99 Ala. 558; 14 So. 468. 57. Thompson v. L,ibby, 36 Minn. 287; 31 N. W. 52. John v. Hendrickson, 81 Ind. 350. Werner v. Pen Argyl Co., 133 Pa. St. 457 ; 19 Atl. 417. Rogers v. Hlggins, 57 111. 244. Gilchrlst v. Manning, 54 Mich. 210; 19 N. W. 959. Masson v. Bovet, 1 Denlo 69. Grymes v. Sanders, 93 U. S. 55. Vernol v. Vernol, 63 N. T. 45. Bower v. Metz, 54 la. 394; 6 N. W. 551. Seavy v. Potter, 121 Mass. 297. Hunt v. Hardwick, 68 Ga. 100. Brown v. Waters, 7 Neb. 424. Barman v. Woods, 38 Ark. 351. TORTS. 345 ceit 58 ; and false representations that a mortgage is a prior lien are not waived by retaining the mort- gage 59 . Sec. 346. The principles here set out have been well commented on by a Federal court as follows : "The contract, being against conscience because of the fraud, is not obligatory upon him if he shall so elect; but if, when fully informed of the fraud, he voluntarily confirms, ratifies and performs and ex- acts performance of the contract, he condones the fraud, and such ratification, like the unauthorized act of an agent, relates to the time of the contract, confirming it from its date and purging it of fraud. With respect to an executory contract, one may not, with knowledge of the fraud, continue to carry it out, exacting performance from the other party to it, receive its benefits, and still pursue an action for deceit; and this because continued execution with knowledge of the fraud signifies the ratification of a contract voidable for fraud, and condones the fraud. For example, if one by the imposition of fraudulent practices, has been induced to purchase goods, and after their receipt discovers the fraud, he may re- scind, or may affirm and have his action for the de- ceit. But if, before delivery of the goods, he has discovered the fraud, he may not then accept the goods and still have an action for the deceit. He had sustained no injury prior to the discovery of the fraud. He was under no legal obligation to execute a contract imposed upon him through fraud. Fraud without damage, fallen or inevitable, is not actionable. The loss arises from his acceptance of the goods. This being done with knowledge of the 58. Cain v. Dickinson. 60 N. H. 371. 69. Childs v. Merrill, 63 Vt. 463; 22 Atl. 626; 14 L. R. A. 264. 346 THE LAW or WAIVEB. fraud, he has voluntarily brought upon himself the injury. Volenti non fit injuria. With respect to an executory contract voidable by reason of fraud, the defrauded party, with knowledge of the deceit prac- ticed upon him, may not play fast and loose. He cannot approbate and reprobate. He must deal with the contract and with the wrong-doer at arm's length. He may not, with knowledge of the fraud, speculate upon the advantages or disadvantages of the contract, receiving its benefits and at the same time repudiating its obligations" 60 . Sec. 347. But if the contract be not wholly ex- ecutory, different principles obtain. For if the party complaining of the fraud has partly per- formed his part of the contract before learning of the deceit practiced upon him, he may maintain an action for the fraud even though he proceed to full performance of his contract 61 . In line herewith, it has been further said: "As regards what have been termed consistent remedies, the suitor may, without let or hindrance from any rule of law, use one or all in any given case. He may select and adopt one as better adapted to work out his purpose than the others, but his choice is not compulsory or final, and if not satisfied therewith, he may commence 60. Kingman & Co. v. Stoddard, 85 Fed. 940; 29 C. C. A. 413; 57 U. S. App, 879. Simon v. Goodyear Co.. 105 Fed. 573 ; 44 C. C. A. 612 ; 52 L. R. A. 745. Saratoga Co. v. Row. 24 Wend. 74; 35 A. D. 598. Gilmer v. Ware. 19 Ala. 252. Minn. Thresher Co. v. Grubeu, 6 Kans. App. 665 ; 50 Pac. 67. Grindrod v. Ango-Am. Bond Co., 85 Pac. 891. Brown t\ Waters, 7 Neb. 424. Males v. Lowenstein, 10 Oh. St. 512. Downer v. Smith. 32 Vt. 1; 36 A. D. 148. 61. Haven v. Neal. 43 Minn. 315; 45 N. W. 612. Whitney v. Allaire, 4 Denio 554 ; see, 1 N. T. 305. Mallory v. Leach, 35 Vt. 156; 82 A. D. 625. Nauman v. Oberle, 90 Mo. 666; 3 S. W. 380. TORTS. 347 and carry through the prosecution of another. Thus, where a sale of chattels is induced by the fraud of the vendee, the vendor may prosecute the vendee for the price of the articles in one action, and in another for damages on account of the fraud ; both proceeding on the theory of ratifying the sale. But he cannot maintain either if he has rescinded the sale, or if, on the theory of rescission, he has re- sorted to replevin to recover the property. No suitor is allowed to invoke the aid of the courts upon contradictory principles of redress upon one and the same line of facts" 62 . 3. CONVERSION: Sec. 348. That the owner of property wrongfully obtained by another may waive his right of action for the wrong and sue for the value of the property is a principle upon which all the courts agree, with the proviso that the prop- erty has been changed into money or its equivalent by the wrong-doer 63 . But on this proviso there is a hopeless division of opinion. It was in an early day universally held that unless the property had been so converted into money or its equivalent that the action must be ex delicto and could not be upon an implied agreement to compensate the owner for the value of the property 64 ; and this has been held even 62. 7 Enc. PI. & FT., 362. 63. White v. Brooks, 43 N. H. 402. Staat v. Evans, 35 HI. 455. Crow v. Boyd, 17 Ala. 51. Halleck v. Mixer, 16 Cal. 574. Shaw v. Coffin, 58 Me. 254. 4. Jones v. Hoar, 5 Pick. 289. Watson v. Stever, 25 Mich. 386. Moses v. Arnold, 43 la. 187. Pike v. Wright, 29 Ala. 332. Mann v. Locke, 11 N. H. 246. Randolph v. Elliott, 34 N. J. L. 184. Center Turnpike Co. v. Smith, 12 Vt. 212. Webster v. Drinkwater, 5 Greenl. 319 ; 17 A. D. 288. Stears v. Dillingham, 22 Vt. 624; 54 A. D. 88. 348 THE LAW OP WAIVER. where the property had been exchanged for other property 65 , the court saying that a sale and an ex- change were entirely different matters. And it was held that the action was not brought to recover the reasonable value of the property, but that the owner was limited in the amount of his recovery to the amount received for it by the tort-feasor 66 . Sec. 349. But the above doctrines have not re- ceived unanimous concurrence by the modern courts, and a more liberal policy has been an- nounced. Good reason would seem to dictate that the wrong-doer should be subject to either form of action that the owner might elect to invoke; for the action is the result of his own conduct and arises from his own voluntary act. The owner should be permitted to waive the tort and sue upon an implied contract or agreement to pay the reasonable value of the property whether converted into cash or not. Such action does not impair the rights of the tort- feasor, for therein he has the right of set-off which would be denied him were the owner not allowed to elect such remedy, he could clearly not be sub- jected to the hazard of a second action for the same matter, and the owner would be restricted in his re- covery to the simple value of the property, while in an action ex delicto the plaintiff might obtain a judgment in excess of such value. As was said in an early case announcing this doctrine: "No party is bound to sue in tort, where by converting the ac- tion into an action on contract he does not preju- dice the defendant; and, generally speaking, it is more favorable to the defendant that he should be 6B. Fuller v. Duren, 36 Ala. 78. 66. Rand v. Nesmlth, 61 Me. 111. Pearsoll v. Chapin, 44 Pa. St. 9. TORTS. 349 sued in contract, because that form of action lets in a set-off and enables him to pay the money into court" 67 . And in accordance with such principles, it has been said that the tort-feasor shall not be al- lowed to set up his own wrongful intent in disap- proval of the implied promise which the law would otherwise raise against him 68 . The matter has been well put as follows: "In some of the states it has been denied, and such denial placed upon the ground that the property remained in the hands of the wrong-doer, and, therefore, no money having been received by him in fact, an implied promise to pay over the money had and received by the defendant to the plaintiff's use did not and could not arise. Such was the case of Jones v. Hoar, 5 Pick. 285. But the great weight of authority in this country is in favor of the right to waive the tort even in such case. If the wrong-doer has not sold the prop- erty, but still retains it, the plaintiff has the right to waive the tort and proceed upon an implied con- tract of sale to the wrong-doer himself, and in such event he is not charged as for money had and re- ceived by him to the use of the plaintiff. The con- tract implied is one to pay the value of the property as if it had been sold to the wrong-doer by the owner. If the transaction is thus held by the plain- tiff as a sale, of course the title to the property 67. Young v. Marshall, 8 Bing. 43; (21 E. C. L. 215). 68. Butts v. Collins, 13 Wend. 153. Ford v. Caldwell, 3 Hill (S. Car.) 248. See Article by Cooley, 3 Alb. L. J. 141. Halleck v. Mixer, 16 Cal. 574. Barker v. Cory, 15 Oh. 9. 350 THE LAW OP WAIVES. passes to the wrong-doer when the owner elects so to treat it" 69 . Sec. 350. So, it is said that the doctrine that in cases where property has been severed from real estate by a wrong-doer, carried from the freehold and converted to his own use, the rightful owner may sue and recover its value as on an implied con- tract, is well established 70 . And where one had torn down the fence of another and turned his cattle on the latter 's pasture, a bill for pasturage was al- lowed as a counter-claim in an action brought by the former 71 . Where plaintiff raised a crop on shares on defendant's land, and the latter wrong- fully took possession of the entire crop, the plaintiff was permitted to sue for the value of his part of the crop 72 . A person receiving money from another for a particular purpose, to which he does not apply it, may be sued either for money had and received or for a breach of trust 73 . A bank paying a deposit to the wrong person may be sued by the one enti- tled to it as a debtor for the deposit, or the person receiving the money may be sued for money had and received; but by electing to bring one action, the owner waives the other 74 . This is upon the 69. Terry v. Munger, 121 N. T. 161; 24 N. E. 272; 18 A. S. R. 803; 8 L. R. A. 216. Pomeroy, Remedies 2d Ed. 667-9. Abbott v. Blossom, 66 Barb. 353. May v. Le Claiare, 11 Wall. 217; 20 L. Ed. 607. Hill v. Davis, 31 N. H. 384. Allen v. U. S., 17 Wall. 207; 21 L. Ed. B53. 70. Downs v. Flnnegan, 58 Minn. 113; 59 N. W. 981; 49 A. S. R 488. 22 Am. & Eng. Enc. L. 389. 71. Norden v. Jones, 33 Wis. 600; 14 A. R. 782. 72. Fiquet v. Allison. 12 Mich. 328; 86 A. D. 64. McLaughlin v. Salley, 46 Mich. 219. 7S. Taylor v. Benham, 6 How. 233 ; 12 L.. Ed. 180. 74. Fowler v. Bowery Savings Bank, 113 N. T. 450; 11 W. E. 172; 10 A. S. R. 479 ; 4 L. R. A. 145. TORTS. 351 principle governing the election of remedies that where they are not concurrent a choice between them once made is conclusive and precludes the right to go back and choose again 75 . 4. EFFECT OF WAIVER: Sec. 351. The election of remedies between the rights arising ex delicto and ex contractu, which election results nec- essarily in the waiver of one, can be indicated only by the theory of the pleadings which the plaintiff adopts. Nothing can be ascertained from the form of the pleadings under the code, for there is but one form of action, and the election or character of the action is to be determined from the general scope and tenor of the pleadings 76 . The results of electing between such remedies may be far reach- ing, as defenses may be made to one action which could not be made to another ; as where an infant is sued in contract instead of in tort, the plea of in- fancy might release him from liability while it would not if the remedy in tort had been chosen 77 . And a right of set-off may exist in an action ex con- tractu which could not avail in an action ex delicto 1 *. And an action on contract might let in a plea of the 75. BigeJow, Estoppel, 578. Herman, Estoppel, 461. Pomeroy, Remedies, 570. Sumner v. Rogers, 90 Mo. 324 ; 2 S. W. 476. Hughes v. Vt. Cop. Min. Co., 72 N. T. 209. Becker v. Walsworth, 45 Oh. St. 169 ; 12 N. E. 1 ; 10 West. Rep. 431. Thompson v. Howard, 31 Mich. 309. Agnew v. McElroy. 10 Smedes & M. 552; 48 A. D. 772. Walsh v. ChesapeaV-e, etc. Co., 59 Md. 423. 76. Neidefer v. Chastain. 71 Ind. 363; 36 A. R. 198. 77. Walker v. Davis, 1 Gray, 506. Vasse v. Smith, 6 Cranch 225. Elwell v. Martin, 32 Vt. 217. Studwell v. Shapter, 54 N. Y. 249. Carpenter v. Carpenter, 45 Ind. 142. 78. Chambers v. Lewis, 11 Abb. Pr. 206. Allen v. Randolph, 48 Ind. 496. 352 THE LAW OP WAIVER. statute of limitations not available in an action in tort 79 . And a judgment in an action on contract might be defeated by a plea of exemptions which could not be invoked in an action in tort 80 . While the results of a waiver of the right to sue in tort consequent upon an election to proceed on contract are permanent and irrevocable, a plaintiff is not always precluded from choosing a second time where his defeat in the first choice was solely because he did not pursue the proper remedy/ 1 . 79. Huffman v. Hughlett, 11 Lea 549 (Term.). Lane v. Boi court, 128 Ind. 420. 80. Warner v. Cammack, 37 la. 642. Schouton v. Mclntosh, 89 Ind. 593. Davis v. Henson, 29 G-a. 345. 81. Farwell v. Myers, 59 Mich. 179. Bulkley v. Morgan, 46 Conn. 393. Baley v. Hervey, 135 Mass. 172. Strong v. Strong, 102 N. T. 69. PLEADING. 353 CHAPTER 14. PLEADING. 1. WAIVER BY APPEARANCE: Section A. Defects In Process 352 (1) Special appearance 362 (2) Exemption from service 366 B. Jurisdiction (1) Over subject-matter 367 2. DEFECTS IN COMPLAINT: A. In General 370 B. By Answering 373 C. Mis-Joinder (1) Of parties 375 (2) Of causes of action 376 D. Incapacity Of Plaintiff 377 E. Waiver Of Error In Overruling Demurrer 378 F. Objections To Venue 379 3. IN ATTACHMENTS AND GARNISHMENTS: A. Defects In Affidavit .382 B. Defects In Writ 383 C. Waiver Of Attachment Lien 384 D. Waiver By Garnishee 385 4. IN CRIMINAL PROCEEDINGS: A. Jurisdiction 386 B. No Offense Charged In Indictment 388 C. Former Jeopardy 389 1. WAIVER BY APPEARANCE !AL DEFECTS IN PROCESS : Sec. 352. It is not always essential to the validity or binding effect of a proceeding against a defendant that sum- mons should have been either regularly issued or served upon him. In fact, various codes provide that after the filing of a complaint the defendant may appear, answer or demur, and in any such event the issuance and service of summons shall be deemed to have been waived. The function of a Bummons is to get the defendant before the court, a method of bringing him in involuntarily. And if 354 THE LAW or WAIVES. lie see fit to forego his right to have the action pro- ceed formally, to submit his side of the controversy voluntarily to the court, his action in so doing will have the same effect as if the matter had proceeded with strict formality. In other words, the issuance or service of summons may be waived by the de- fendant, and such waiver will be inferred from his general appearance in the case. And by such waiv- er the defendant invokes the judgment of the court and submits himself to its jurisdiction, after which he cannot be heard to say that it has not power to bind him 82 . Even informalities in the commencing of an action may be waived together with the waiver of process, as where a proceeding was commenced by a motion and the parties went to trial without the issuance and service of process, an ob- jection that the proceeding was by motion and no- tice instead of action and summons was overruled 83 . Sec. 353. The same matters that waive issu- ance and service of process are equally available as a waiver of defects or irregularities in the issuance, service or return thereof 84 , for such is equivalent to personal service 85 . And while a defendant has the 82. Sealy v. Cal. Lbr. Co., 19 Oreg. 94; 24 Pac. 197. Boulder Sanitorlum v. Vanston, 14 N. Mex. 436 ; 94 Pac. 945. 83. Hawkins v. Taylor, 56 Ark. 45; 19 S. W. 105; 35 A. S. R. 82. 14. Tex. Ry. Co. v. Cox, 145 U. S. 6S3; 12 Sup. Ct. R. 905. Yaeger v. City, 39 111. App. 21. Mason, etc. v. Griffin, 134 111. 330; 25 N. E. 995. Hall v. Craig, 125 Ind. 523; 25 N. E. 538. Rose v. Richmond Co., 17 Nev. 25; 27 Pac. 1105. Orear v. Clough, 52 Mo. 55. German Bank v. Ins. Co.. 83 la. 491 ; 50 N. W. 53 ; 32 A. S. R. 316. Bar hour v. Newkirk, 83 Ky. 529. Hazard v. Wason. 152 Mass. 268; 25 N. E. 465. Haussman v. Burnham, 59 Conn. 117; 22 Atl. 1065. Kaw Assoc. v. L/emke, 40 Kans. 142; 19 Pac. 337. 9i. Naye v. Noezel, 50 N. J. L. 523; 14 Atl. 750. Dikeman v. Struck, 76 Wis. 332 ; 45 N. W. 118. Stamphill v. Franklin Co., 86 Ala. 392; 5 So. 487. PLEADING. 355 right to require summons to be issued and served upon him before the court can exercise its power over him or his property, and also the right to de- mand that such issuance and service of process shall be regular in all details and in strict compli- ance with legal requirements, still the latter right, as well as the former, he may forego or waive, and any act of his will be sufficient to constitute such waiver if it evince an intention, or support the in- ference that the defect or irregularity will not be taken advantage of. Therefore, if he desire to uti- lize the defect as a means of escape, he must himself proceed properly. If he claim that the court has acquired no jurisdiction over his person by reason of defects or irregularities in the process or service thereof, his remedy is by special appearance and objection to the jurisdiction, and if he go further and enter a general appearance, or invoke the powers of the court for any other purpose than quashing the pretended process or service thereof, the defects are thereby waived 86 . And when he makes such special appearance, he must stand by his guns or surrender his advantage; for, though he may attempt by motion and then by plea to quash the summons or service of same, lie waives the de- fects therein by answering to the merits after the motion and plea have been determined adversely to him 87 . Sec. 354. It being the universal rule that a gen- 16. Baker v. Bank, 63 Neb. 801; 89 N. W. 269; 93 A. S. R. 484. Omaha Bank v. Knigrht, 50 Neb. 342; 69 N. W. 933. Ley v. Pilger, 69 Neb. 561; 81 N. W. 507. 17. Union Pac. Co. v. De Busk, 12 Colo. 294 ; 20 Pac. 752 ; 13 A. S. R. 221. Ruby Co. v. Gurley, 17 Colo. 199; 29 Pac. 668. Sears v. Starbird, 7S Cal. 225 ; 20 Pac. 547. Campbell Co v. Marsh, 20 Colo. 22 ; 36 Pac. 799. 356 THE LAW OP WAIVER. eral appearance of a defendant constitutes a waiver of the issuance of process or of defects and irregu- larities therein, it is necessary to notice what is a sufficient appearance to produce such effect. His appearance is evidenced by his filing in the action his answer, demurrer or a notice to the plaintiff that he appears in the case 88 . And in such cases as those under consideration it is immaterial that the defendant was ignorant of the irregularities that would have rendered the proceeding void, until after he had made his appearance. In one case where only this question was involved, the court said: ''Without saying whether this writ is abso- lutely void, we are clear that it cannot be set aside at this stage of the cause. The defendant has taken a step by which he is regularly in court, whether there be any process or not. We will not interfere merely because the party acted in ignorance that the process was void" 89 . Sec. 355. The particular facts which may ren- der a summons or the service thereof defective are matters with which we are not here concerned. The process may be irregular in form or defective in substance; and the service may be defective either because made by an incompetent person, or upon a person not authorized to receive it, or at a time or place where the service was unauthorized, or be- cause some act prescribed by law has been omitted. And in any of such events the proceeding will be 88. Walla Walla Pub. Co. v. Budd, 2 Wash. Ter. 336; 5 Pac. 602. McCoy v. Bell, 1 Wash. St. 504; 20 Pac. 595. Steinbach v. Leese, 27 Cal. 297. Wyatt v. Freeman, 4 Colo. 14. Smith v. Arapahoe Co. Ct., 4 Colo. 235. 89. Plxley v. Wlnchell, 7 Cowen 366; 17 A. D. 525; followed in: Gardner v. Teller, 2 How. Pr. 241. Hubbell v. Dana, 9 How. Pr. 425. Coppernoll v. Ketcham, 56 Barb. 113. PLEADING. 357 vacated upon motion interposed before final judg- ment unless the defendant has entered his general appearance in the action, or has by other conduct voluntarily waived the irregularity 90 . Sec. 356. But it is necessary, in order that a waiver may be deduced from the conduct of a de- fendant, that he should make an actual appearance in the case, or do something equivalent thereto. A recital in the record of the clerk that the defendant had appeared at a previous term is not sufficient 91 . Nor will a motion to set aside a default -entered against several defendants who were served be held such an appearance as will waive the failure to serve other defendants 92 . But the question whether an alleged appearance is to be held a waiver in such cases does not resolve itself into a mere determina- tion of the intention of the defendant 93 ; for the ap- pearance for the purpose of contesting the merits of the cause, whether by motion or by formal pleading, is a waiver of all objection to the juris- diction of the court over the person of the defend- ant, whether he intended such waiver or not 94 . And the same is true if he in any manner invokes the aid of the court without questioning its jurisdiction over his person 95 . This is upon the well-established principle that he who has the right to object to such 90. Falvey v. Jones, 80 Ga. 130; 4 S. E. 264. 91. Kimball v. Merrick, 20 Ark. 12. 92. Klemm v. Dewes, 28 111. 317. 93. Wabash Ry. Co. v. Brow, 164 U. S. 271; 17 Sup. Ct. R. 126. 94. Handy v. Ins. Co., 37 Oh. St 366. Sentenis v. Ladew, 140 N. T. 463; 35 N. E. 650. Meixell v. Kirkpatrick, 29 Kans. 679. Shafer v. Hockheimer, 36 Oh. St. 215. 95. Mason v. Alexander, 44 Oh. St. 318 ; 7 N. E. 435. Davis v. Wood, 7 Mo. 162. Murat v. Hutchinson, 1 Harr 46 (N. J.). Reeder v. Murray, 3 Ark. 450. Cartwright v. Chabert, 3 Tex. 261 ; 49 A. D. 742. 358 THE LAW OF WAIVER. defects or irregularities must do so promptly and at the first opportunity before the party committing the error has taken any further steps in the cause or been misled into a reasonable belief that the ob- jection is not to be urged 06 . Sec. 357. Thus, a waiver of such objections oc- curs where the defendant moves to vacate a judg- ment for want of jurisdiction over his person, and then consents to a dismissal of the motion 97 ; or files a motion to strike from the files all the papers in the case for defects and irregularities 98 ; or moves to dismiss for want of jurisdiction over the subject-matter, his motion being overruled 99 , or causes to be given a bond to stay execution 100 ; each of such acts constitutes a general appearance of the defendant. A voluntary appearance being equiva- lent to service of summons gives the court juris- diction over the defendant, even though the answer constituting the appearance expressly reserves the right to object to the jurisdiction of the court 1 . And if he appears specially and obtains an order setting aside service of the summons, he will be held to have waived further process by submitting the cause on a demurrer to the bill 2 . And if a defend- ant against whom a default judgment has been ren- dered asks to have the decree set aside for the rea- son that the court had no jurisdiction over his per- son and for the further reason that fraud and deceit had been practiced upon him and that there was no evidence to support the decree, such appearance is 96. Beall v. Blake, 13 Ga. 217; 58 A. D. 513. 97. Marsden v. Soper, 11 Oh. St. 503. 98. Maholm v. Marshall, 29 Oh. St. 611. 99. Elliott v. Lawhead, 43 Oh. St. 171. 100. Shafer v. Hockheimer, 36 Oh. St. 215. 1. Mahaney v. Penman, 4 Duer 603. 2. Leute v. Clark, 22 Fla. 515 ; 1 So. 149. PLEADING. 359 general and is a waiver of any defects in the serv- ice of process 3 . Sec. 358. A holding above adverted to was to the effect that a defendant appearing and putting in an answer and proceeding to a trial on the merits waives defective service of process and gives the court jurisdiction over his person, notwithstanding his appearance in the first instance was for the spe- cial purpose of objecting to the jurisdiction of the court and the subsequent proceedings on his part were accompanied by a protest against jurisdic- tion 4 . But this holding is not adhered to by a ma- jority of the courts, and in fact a contrary doctrine is announced by most courts and is supported by the better reason. When the defendant has made the record show a proper objection, he has done all he can do, and should not be compelled, after the overruling of his objection, to desert the case and leave the opposite party to take judgment by default 5 . It will be seen from the above citation that the Supreme Court of the United States lends the weight of its authority to the principle that a party not properly served with process so as to give the court jurisdiction over his person, does not waive the objection or confer jurisdiction by an- 3. Yorke v. Torke, 2 N. Dak. 343 ; 55 N. W. 1095. 4. Union Pac. Co. v. De Busk, 12 Colo. 294; 20 Pac. 752; 1 A. *. R. 221. See, also : Baker v. Bank, 63 Neb. 801 ; 89 N. W. 269 ; 98 A. S. R. 484. 5. Steamship Co. v. Tugman, 106 U. S. 118. Jones v. Jones, 108 N. Y. 415; 15 N. E. 707. Dlckerson v. Burlington Co., 43 Kans. 702 ; 23 Pac. 936. Lynmn v. Milton, 44 Cal. 630. 360 THE LAW OF WAIVES. swering over and going to trial on the merits after he has ineffectually objected to the jurisdiction 6 . Sec. 359. But without reserving properly such objections, a waiver of issuance or service of, or defects in process is waived if the defendant file a demurrer to the complaint 7 , and answer 8 , agree- ment for a continuance 9 , taking a stay of the order of sale in a foreclosure case 10 , or filing exceptions to a Commissioner's report 11 . And of course such waiver may be produced by the written acknowl- edgment of service and a consent by the defendant that the cause may proceed as if summons had been regularly issued and served 12 , although the con- trary has been held by a court 13 , which later at- tempted to explain its holding 14 . And a waiver may occur even after judgment, for if a defendant 6. Harkness v. Hyde, 98 U. S. 476. Dewey v. Greene, 4 Denio 94. Willing v. Beers, 120 Mass. 548. Warren v. Crane, 50 Mich. 301; 15 N. W. 465. Avery v. Slack, 17 Wend. 85. Reinstadler v. Reeves, 33 Fed. 308. Wabash Ry. Co. v. Brow, 164 U. S. 271 ; 17 Sup. Ct. R. 126. Ward v. George, 1 Bush 357. 7. Willman v. Friedman, 4 Idaho 209; 38 Pac. 937; 95 A. S. R. 59. Hollinger v. Reeme, 138 Ind. 262; 36 N. E. 1114; 46 A. S. R. 402. 8. Young v. Ross, 31 N. H. 205. German Bank v. Ins. Co., 83 la. 491 ; 50 N. W. 53 ; 32 A. S. R. 316. Macon Ry. Co. v. Gibson, 85 Go. 1 ; 11 S. B. 442 ; 21 A. S. R. 135. 9. Baisley v. Baisley, 113 Mo. 544; 21 S. W. 29; 35 A. S. R. 726. 10. Franse v, Armbuster, 28 Neb. 467; 44 N. W. 481; 26 A. S. R. 345. 11. Newman v. Moore. 94 Ky. 147; 21 S. W. 759; 42 A. S. R. 343. 12. Laramore v. Chastaln, 25 Ga. 592. Vermont Co. v. Marble, 20 Fed. 117. Dunn v. Dunn, 4 Paige, 430. Cheney v. Harding, 21 Neb. 65; 31 N. W. 255. Ex Parte, Schollenberger, 96 U. S. 369. Shaw v. National Bank, 49 la. 179. Allured v. Voller, 107 Mich. 476 ; 65 N. W. 285. 13. Weatherbee v. Weatherbee, 20 Wis. 499. 14. Keeler v. Keeler, 24 Wis. 522. PLEADING. 361 join in an appeal from a judgment rendered in the lower court, he cannot object that no summons was there served upon him 15 . Sec. 360. The cases and principles above ad- verted to are equally applicable to a case of mis- nomer, that is, where a defendant is sued by the wrong name. A Mississippi case succinctly states this rule: "There are cases which hold that one sued and served by a wrong name may disregard the summons. All agree that one summoned by a name not his own, and who appears and does not plead misnomer, waives it and is bound by the judg- ment in the wrong name. There is no sound reason for a distinction in the two classes of cases. The true view is, that one summoned by a wrong name, being thus informed that he is sued, although not correctly described by his true name, not availing of his opportunity to appear and object, should be precluded from afterwards objecting. Having re- mained silent when he might and should have spoken, he must ever afterward be silent as to this matter" 16 . Sec. 361. But where an attorney appeared for a defendant and obtained an order extending the 15. Harmison v. Lewistown, 152. 111. 313 ; 46 A. S. R. 893. Thorn v. Thorn, 47 W. Va. 4; 34 S. E. 759. 16. Alabama By. Co. v. Holding, 65 Miss. 255; 13 So. 846; 30 A. S. R. 541. 1 Black, Judgments, Sec. 213. Welsh v. Kirkpatrick, 30 Cal. 202; 89 A. D. 85. Lafayette Ins. Co. v. French, 18 How. 404. First Nat'l. Bank v. Jaggers, 31 Md. 38 ; 100 A. D. 53. Hoffield v. Board, 33 Kans. 644; 7 Pac. 216. Waldrop v. Leonard, 22 S. Car. 118. Medway Co. v. Adams, 10 Mass. 360. Gulnard v. Heysinger, 15 111. 288. Parry v. Woodson, 33 Mo. 347; 84 A. D. 61. Waterbury v. Mather, 16 Wend. 611. See also: Johnston v. Union, 75 Cal. 134; 16 Pac. 753; 7 A. S. R. 129. 362 THE LAW OF WAIVER. time to file a plea, such appearance cannot be re- garded as a general appearance sufficient to consti- tute a waiver of defects in the service of sum- mons 17 . Such appearance bears no relation to the merits of the action, and cannot mislead the plain- tiff into a belief that no objection to the defective service is to be raised. The same was held true where a defendant appeared in court and asked for a stay of one day, and on the following day ap- peared and objected to irregularities in the proceed- ings 18 . (1) SPECIAL APPEAKANCE: Sec. 362. Whatever position the various courts may assume respecting waiver, by a general appearance, of sum- mons or defects in the issuance or service thereof, no doubt is expressed among them that a defendant may appear for the special purpose of objecting to the jurisdiction of the court over his person and not thereby confer jurisdiction where none existed be- fore. A different holding would be fraught with dangers to the whole system of judicial procedure, for on the one hand it would encourage a loose and careless performance of official duties in the issu- ance and service of summons which would constant- ly increase; and, on the other hand, it would require of a defendant that he either submit himself to the power of the court under process defectively, irreg- 17. Mulhearn v. Press Co., 53 N. J. L. 150. 18. Nelson v. Campbell, 1 Wash. 261 ; 24 Pac. 539. See Generally: Toland v. Sprague, 12 Pet. 300 (U. S.). Payne v. Bank, 29 Conn. 415. Crlstal v. Kelley, 88 N. T. 285. Reynolds v. Lyon, 20 Ga. 225. Louisville Co. v. Nicholson, 60 Ind. 158. Anderson v. Morris, 12 Wis. 689. Lane v. Leech, 44 Mich. 163; 6 N. W. 228. Fulbrlght v. Cannefox, 30 Mo. 425. Harris v. Guln, 18 Miss. 563. PLEADING. 363 ularly or perhaps illegally issued or served, or that he remain silent and subsequently incur the expense and trouble of bringing a direct proceeding to set aside a voidable judgment. Sec. 363. But the contemplation of disasters that might accrue to individuals by reason of a dif- ferent rule becomes unnecessary when we examine the cases bearing upon the point under discussion; for their practically uniform holding is that where the summons is defectively or irregularly issued or served, the defendant may appear specially in the case to have the summons or service set aside 19 ; and by such appearance he will not be held to have waived such defect or irregularity nor voluntarily submitted himself to the jurisdiction of the court 20 . In one case the defendant set up in a special answer that the service of process was unlawful and dis- closed the facts constituting such illegality. The court held that he did not waive his objection by merely setting up the facts upon which it was based 21 . And the special appearance of a non-resi- dent defendant for the purpose of moving to set aside a judgment rendered against him by default 19. Kinkade v. Myers, 17 Oreg. 470; 21 Pac. 557. 20. Smith v. Hoover, 39 Oh. St. 249. Reed v. Chilson, 142 N. Y. 152 ; 36 N. E. 884. Chubbuck v. Cleveland, 37 Minn. 466; 35 N. W. 362; 5 A. S. R. 864. Shaw v. Quincy Co., 145 U. S. 444; 12 Sup. Ct. R. 935. Brown v. Rice, 30 Neb. 236; 46 N. W. 489. Dailey v. Kennedy, 64 Mich. 208 ; 31 N. W. 125. Baily v. Schrader, 34 Ind. 260. Chesapeake Co. v. Heath, 87 Ky. 651; 9 S. W. 832. Simcock v. Bank, 14 Kans. 529. Law v. Nelson, 14 Colo. 409 ; 24 Pac. 2. Allen v. Lee, 6 Wis. 478. Nye v. Lisoombe, 21 Pick. 263 (Mass.). 11. Chubbuck v. Cleveland, 37 Minn. 466; 35 N. W. 362; 5 A. B. R. 864. 364 THE LAW OF WAIVEB. is not a waiver of any jurisdictional rights 22 , nor is an appearance for the purpose of having the ac- tion dismissed for the want of service, a waiver 23 . So, a defendant specially appearing for the purpose of moving to strike out an amended complaint and asking for an extension of time in which to move or plead until the determination of the motion, does not make an appearance sufficient to waive service of the summons and the amended complaint 24 . And it has been said that the appearance of a party after judgment merely to give notice of an appeal is not such an appearance as will by itself give jurisdic- tion 25 . And it is also said that if a party appear to prosecute a writ of error, he must, upon reversal of the judgment, appear and answer the same as if he had been originally served with process 26 . Sec. 364. Where defendants appeared specially and objected to the jurisdiction of the court on the ground that the service of summons was not suffi- cient to confer jurisdiction, and after the court had overruled this objection they appeared, generally, and answered, it was held that such appearance was not voluntary and did not waive the objection to jurisdiction; nor was such objection waived or any jurisdiction conferred by an appeal for the sole pur- pose of reviewing the question of the sufficiency of the summons 27 . It was later said in the same state that if a special appearance to object to jurisdic- 22. Paxton v. Daniell, 1 Wash. St. 19; 23 Pac. 441. Wright v. Boynton, 37 N. H. 9; 72 A. D. 319. 23. Merrill v. Houghton, 51 N. H. 61. March v. East. Ry. Co., 40 N. H. 583. 24. Powers v. Braly, 75 Gal. 237; 17 Pac. 197. 26. McKinney v. Jones, 7 Tex. 598 ; 58 A. D. 83. De Witt v. Monroe, 20 Tex. 293. 26. Woolford v. Dugan, 2 Ark. 131 ; 35 A. D. 52. See, also : Holden v. Haserodt, 2 S. Dak. 220 ; 49 N. W. 97. 27. Miner v. Francis, 3 N. Dak. 549; 38 N. W. 343. PLEADING. 365 tion is, after the objection is overruled, followed by a general appearance, the question of jurisdiction is not open to collateral attack 28 ; the conclusion de- ducible therefrom being that the jurisdiction would be subject to direct attack. An appearance of thd defendant under protest at a time to which an ad- journment of a cause had been improperly had, can- not have the effect of reviving process which has failed from the non-appearance of the plaintiff at the time named in the writ 29 . Sec. 365. Of course a party may appear either generally or specially by attorney the same as per- sonally, and such appearance is equally binding upon him. And it is said that in a suit against an infant where the summons is not served upon him, his guardian may appear and answer for him and the court will thereby obtain jurisdiction over their persons 30 . But this doctrine is more properly de- nied 31 . 28. Parsons v. Venzke, 4 N. Dak. 452; 61 N. W. 1036; 50 A. S. R. 669. 29. Martin v. Fales, 18 Me. 23: 36 A. D. 693. See Generally: Green v. Green, 42 Kans. 654; 22 Pac. 730. Chahoon v. Hollenback, 16 Serg. & R. 425 ; 16 A. D. 587. Dailey v. Kennedy, 64 Mich. 208; 31 N. W. 125. Chesapeake Ry. Co. v. Heath, 87 Ky. 651 ; 9 S. W. 382. Ames v. Winsor, 19 Pick. 207. Allen v. Lee, 6 Wis. 478. Standley v. Arrow, 13 Fla. 361. Campbell v. Swasey, 12 Ind. 70. 30. Redmond v. Peterson, 102 Cal. 599 ; 36 Pac. 923 ; 41 A. S. R. 206. Hopper v. Fisher, 2 Head 253 (Tenn.). See, also: Childs v. Lauterman, 103 Cal. 387; 37' Pac. 382; 42 A. S. R. 121, where it is said that an appearance for an Infant may be by an attorney. 81. Bonnell v. Holt, 89 111. 71. Carver v. Carver, 64 Ind. 194. Sullivan v. Blackwell, 28 Miss. 737. Helms v. Colbourne, 45 Wis. 60. Whlteside v. Barber, 24 S. Car. 37S. Hawes on Jurisdiction, Sec. 231. Ingersoll v. Mangam, 84 N. T. 622. 366 THE LAW OF WAIVER. (2) EXEMPTION FEOM SERVICE : Sec. 366. The law exempts certain persons from the service of civil process, and renders voidable any attempted service in contravention of such exemp- tion. In this discussion it is not our purpose to show what persons are entitled to this privilege, nor the time, place nor proceedings to which the exemption extends. But the privilege is a personal one and may be waived by him who is entitled to assert it, and courts are not bound to judicially notice the right or privilege nor to grant it without a claim 32 . The service is an irregularity of which the defend- ant must avail himself promptly, and if he permit judgment to be rendered against him during the existence of his privilege, and fail to seek during the progress of the proceedings to either abate or suspend them, he thereby waives his right of exemp- tion and the judgment against him is valid 33 . As the privilege must be claimed by plea or motion made in the particular case at the proper time 34 , it follows that after entering a general appearance in the case it is then too late to object to service, for such objection is thereby waived, even though the exemption be claimed in the answer 35 . But the facts giving a right of exemption may be set forth in the answer in the nature of a plea to the juris- diction, and the want of valid service is not thereby 32. Geyer's Lessee v. Irwin, 4 Dall. 107. tt. Thornton v. American Co., 83 Ga. 288; 9 S. E. 679; 20 A. 8. R. 320. Prentls i>. Commonwealth, 5 Rand. 697 ; 16 A. D. 782. 14. Larned v. Griffin, 12 Fed. 590. Peters v. League, 13 Md. 58; 71 A. D. 622. King v. Phillips, 70 Ga. 409. Palmer v. Rowan, 21 Neb. 452; 32 N. W. 210; 69 A, 8. R. 844. N. Williams v. McGrade, 13 Minn. 174. Gracie v. Palmer, 8 Wheat. 699. PLEADING. 367 waived 36 . 'And it has been held that an answer to the merits, joined with a plea to the jurisdiction, does not amount to a waiver of the privilege 37 . The matter has been well stated thus : ' ' The courts may not ex officio take notice of the existence of the priv- ilege. It results from its nature and character that it may be waived, and, therefore, ought to be claimed whenever relied on. The judicial history of the question does not furnish an example of the al- lowance of the privilege but upon plea or upon mo- tion tendered or made at the period proper for the consideration by the court whose proceedings are sought to be abated or suspended. The proof of the facts upon which it rests are easy of attainment, because they are few, and may be adduced as well in the absence as in the presence of the party" 38 . B. JURISDICTION- (1) SUBJECT-MATTER: Sec. 367. In the foregoing discussion we have confined ourselves to the consideration of those matters, chiefly relating to process, which bear upon the exercise by the courts of jurisdiction over the persons of defend- ants. Though perhaps not dealt with by as great a number of cases, the question of the jurisdiction of courts over the subject-matter of an action is equally important. And doubtless the reason that the question has not arisen so frequently is because the principles involved have been from the first so clearly outlined and so consistently followed that no diversity of opinion has been manifested insofar as the matter is affected by the subject of our trea- 36. Byler v. Jones, 79 Mo. 261. 37. Christian v. Williams, 35 Mo. App. 298 ; 111 Mo. 429 ; 20 S. W. 96. 31. Prentte v. Commonwealth, 5 Rand. 697 ; 16 A. D. 782. 368 THE LAW OF WAIVER. tise. For, unlike other legal rights accruing to a party, a defendant has the right to require the plain- tiff to bring his action in a court having cognizance of the subject-matter of the action as established by legal principles, which right he cannot waive. Its benefit he must accept whether he will or not. He cannot consent so as to give to a court, not already possessing it by law, the right to adjudicate any cause, and it is an inflexible rule that any judg- ment rendered by a court outside the vale of its jurisdiction is null and void, incapable of ratifica- tion and subject to collateral impeachment 39 . And the rule has been succinctly stated thus: Where the judicial tribunal has not general jurisdiction of the subject-matter under any circumstances, no averment can supply the defect, no amount of proof can alter the case, no consent can confer jurisdic- tion 40 . The power of the court may be conferred in a number of ways, but however conferred, the rule is the same. And if a defendant cannot con- 39. Webb. v. Carr, 78 Ind. 455. Eaton v. Badger, 33 N. H. 228. Lyles v. Bolles, 8 S. Car. 258. Wamsley v. Robinson, 28 La. Ann. 793. Peabody v. Thatcher, 3 Colo. 275. Dicks v. Hatch, 10 la. 280. San torn v. Ballard, 133 Mass. 465. Fleischman v. Walker, 91 111. 318. Moore v. Ellis, 18 Mich. 77. Damp v. Dane, 29 Wls. 419. 40. Bum/stead v. Read, 31 Barb. 669. Cooper v. Reynolds, 10 Wall. 308. Mex. Ry. v. Davidson, 157 U. S. 201. Watts v. Boom, etc., 47 Mich. 540 ; 11 N. W. 877. Gilliland v. Sellers, 2 Oh. St. 223. To the same effect, see : Doctor v. Hartman, 74 Ind. 221. Jacks v. Moore, 33 Ark. 31. Schuylkill Co. v. Boyer, 125 Pa. St. 226; 17 Atl. 33J. Fields v. Walker, 23 Ala. 155. Moore v. O'Barr, 87 Ga. 205 ; 13 S. B. 464. Payne v. Bank, 29 Conn. 415. Piano Co. v. Rasey, 69 Wis. 246; 34 N. W. 85. Smith v. Myers, 109 Ind. 1 ; 9 N. E. 692. PLEADING. 369 sent that a court shall assume jurisdiction to deter- mine a cause, he can no more, by any conduct of his, waive the question of non-jurisdiction; and any an- swer, demurrer or general appearance of his is in- effectual to constitute such waiver. Sec. 368. Jurisdiction, however, may be limited by statute or the constitution insofar as it affects certain persons ; and in such cases it is held that the dei'endant, when sued, may waive his exemption and confer jurisdiction 41 . Thus, it has been held that a judgment against a Consul of a foreign na- tion upon default is valid ; it being said that his not appearing and pleading to the jurisdiction of the court is a waiver of the want of jurisdiction over him 42 . However, the court said that when sued, the Consul, if he would avail himself of his privi- lege, must make it appear that he is a Consul, un- less the other party shows it as by naming him as a Consul. Sec. 369. It being the rule that parties cannot by their consent give to courts jurisdiction over subjects which the law says they shall not take cog- nizance of, it is equally true that when the jurisdic- tion of courts once attaches to a subject, the parties cannot by their agreement divest the courts of their jurisdiction. This question has arisen more fre- quently in actions on policies of insurance than in any other, a provision usually being inserted in the policies that the amount of a loss or other differ- ences between the insurer and the insured shall be referred to a board of arbitrators before suit on the policy shall be commenced. But this clause, even 41. Bates v. Gage, 40 Cal. 183. 42. Hall v. Young, 3 Pick. 80; 15 A. D. 180. Springfield Co. v. West, 1 Gush. 389. 370 THE LAW OF WAIVER. though assented to by both parties, cannot ous! the courts of their jurisdiction 43 . But while such agree- ments which attempt to oust the courts of their jurisdiction will not be supported either at law or in equity, it is said that those which do not go to the root of the action, but are only preliminary thereto or in aid thereof, such as settling the amount of damage or the time of paying it, or the like, will be sustained 44 . So, where parties stipulated not to appeal, the stipulation was ignored, the court say- ing that the parties cannot by their agreement di- vest courts of law or equity of their proper juris- diction 45 . 2. DEFECTS IN COMPLAINT A. IN GENERAL: Sec. 370. Defects in a complaint, both in substance and in form, are mat- ters of which the courts do not take notice, and to be of any avail to a defendant, must be relied upon by him by a proper objection; and it is a general rule that if a cause be tried without objection to the complaint by demurrer, either general or special, as the particular case may require, the defects will be waived if they do not affect the substantial rights of the parties. By such failure to object, the de- fendant admits that the complaint is sufficient. Or, otherwise stated, all technical or formal objections to a complaint must be raised by motion or de- 41. May on Insurance, Sec. 492. And see: Chapter 12, this volume; sub-division "Arbitration." 2 Story's Eq. Jur. 1457. Hill v. Moore, 40 Me. 515. 44. Wood v. Humphrey, 114 Mass. 186. Pearl v. Harris, 121 Mass. 390. Ins. Co. v. Morse, 20 Wall. 445. Liverpool Co. v. Creighton, 51 Ga. 95. Mentz v. Ins. Co., 79 Pa. St. 478. 44. Muldrow v. Norris, 2 Cal. 74; 56 A. D. 313. Allegre v. Ins. Co., 6 Harr. & J. 408 (Md.) ; 14 A. D. 28-9. PLEADING. 371 murrer before trial, and if not so raised, they will be held waived. A practice which would permit such objections to be made at the trial might be the means of causing needless expense to litigants as well as subjecting the court, witnesses and jurors to unnecessary annoyance, a practice not to be encour- aged since cases in court are to be conducted with the least possible expense to litigants and annoy- ance to the court consistent with the proper admin- istration of justice 46 . And, applying this rule, un- less the demurrer or objection be made in the trial court, it cannot be raised on appeal 47 , for joining issue upon a defective statement is a waiver there- of 48 . And where a demurrer is proper, it must be pertinent, for when a special demurrer is required, the filing of a general one is a waiver of the objec- tion which the special one would have reached 49 . And if a complaint fail to state a cause of action, a demurrer thereto, if interposed, will be sustained, but if the defendant fail to demur, and file an an- swer in which are stated facts which supply the omission of the complaint, the objection, which might have been taken advantage of by demurrer, is thereby waived and the defect cured 50 . And the same result follows where evidence is introduced without objection in support of the defective state- 46. Orman v. Mannlx, 17 Colo. 564; 30 Pac. 1037; 31 A. S. R. 340. Dennison v. Chapman, 105 Gal. 447 ; 39 Pac. 61. 47. Seligman v. Armando. 94 Cal. 314 ; 29 Pac. 710. 48. Davis v. WaJt. 12 Oreg. 425 ; 8 Pac. 356. 49. Daggett v. Gray, 110 Cal. 169; 42 Pac. 568. 50. Robinson Co. v. Johnson, 13 Colo. 258; 22 Pac. 459; 5 L. R. A. 769. Hamilton v. Ry. Co., 17 Mont. 334; 42 Pac. 860; 43 Pac. 713. Shlvely v. Semi-Tropic Co., 99 Cal. 259 ; 33 Pac. 848. Ferera v. Parke, 19 Ores. 141 ; 23 Pac. 883. 372 THE LAW OF WAIVER. ment 51 , or if the omission be supplied in an answer to a cross-complaint 52 . Sec. 371. But it is not a waiver of an objection that might have been raised by demurrer to demand a bill of particulars 53 . Nor can the ground of a general demurrer be waived by a failure to demur, nor, according to some courts, by a consent that the demurrer be overruled, although this latter holding occurs to be somewhat of an anomaly, since the con- sent that a demurrer may be overruled may be an acknowledgment that it is not well founded and may be construed as evidencing an intention to abandon the demurrer. The submission of a demurrer with- out argument, however, is not such a waiver 54 . And it is said that the objection that a complaint or peti- tition does not state facts sufficient to constitute a cause of action cannot be waived 55 . But if a de- fendant pleads to the merits, he waives mere formal defects, and cannot object that the petition does not state a cause of action ; such objection can be inter- posed only when the complaint fails altogether to state a cause of action, and not when it is defective- ly stated 57 . Sec. 372. Where a demurrer is filed, it must be presented to the court either by argument or by 51. Reynolds v. Dickson. 48 Wash. 407 ; 93 Pac. 910. 52. Cohen v. Knox. 90 Gal. 266; 27 Pac. 215; 13 L. R. A. 711. 53. Mulvey v. Staab, 4 N. Mex. 50 ; 12 Pac. 699. 54. Richard v. Ins. Co.. 80 Cal. 505; 22 Pac. 939. 55. Marks, etc. Co. v. Watson, 168 Mo. 133 ; 67 N. W. 391 ; 90 A. S. R. 440. 56. Shreffler v. Nadelhoffer, 133 111. 536; 25 N. E. 630; 23 A. S. R. 626. 67. Johnson v. Ry. Co.. 96 Mo. 340 ; 9 A. S. R. 351. PLEADING. 373 an express submission without argument 58 . For if the defendant file a demurrer, yet enter upon and proceed with the trial upon the merits without call- ing the court's attention to the demurrer or de- manding a ruling upon it, he thereby waives the ob- jection 59 . So, if he demurs, and afterwards an- swers, but withdraws his answer before trial and allows a judgment to be entered, he is presumed to have waived the demurrer 60 . B. BY ANSWERING: Sec. 373. Whether filing an answer after the overruling of a demurrer is a waiver of the right to object to the complaint may depend upon statutory provision, and when such provision is made it must control. But it is held that if a party plead over after demurrer over- ruled, the demurrer is thereby waived and the rul- ing thereon cannot be assigned as error 61 , for it was said that it is not permissible to plead and de- mur at the same time 62 . And if the demurrer is based on several grounds, among which is that the complaint fails to state facts sufficient to constitute 58. The same principles governing demurrers to complaints are appli- cable when the objection is to an answer or reply ; so, the failure of plaintiff to demur waives objection to the answer ; see : Ritchie v. DaVls, 5 Cal. 453. Macdougal v. Maguire, 35 Cal. 274 ; 95 A. D. 98. U. S. v. Boyd. 5 How. 29. Silcox v. Lang. 78 Cal. 118 ; 20 Pac. 297. 59. Wright v. Sherman, 3 S. Dak. 290 ; 52 N. W. 1093 ; 17 A. S. R. 792. Spanish City v. Hopper, 7 Utah 235 ; 26 Pac. 293. Olds v. Gary, 13 Oreg. 362; 10 Pac. 786. Guthrie v. Phelan. 2 Idaho 95 ; 6 Pac. 107. Danielson v. Gude, 11 Colo. 87 ; 17 Pac. 283. Francisco v. Benepe, 6 Mont. 243 ; 11 Pac. 637. Mayor v. Houston Ry. Co., 83 Tex. 548; 19 S. W. 127; 29 A. S. R. 679. 60. Evans v. Jones, 10 Utah 182 ; 37 Pac. 262. 61. Ambler v. Whipple, 139 111. 311; 28 N. E. 841 ; 32 A. S. R. 202. Cooke v. England. 27 Md. 14; 92 A. D. 618. 62. People v. Telephone Co., 192 111. 307; 61 N. E. 428; 85 A. S. R. 33S. 374 THE LAW OF WAIVER. a cause of action, all grounds except this are waived if the defendant answer after the overruling of the demurrer 63 . But if the court grant leave to file an answer after the overruling of a demurrer, it is said that the latter is not waived by the filing of such an- swer 64 ; and an application for such leave is ad- dressed to the discretion of the court below 65 , and unless grossly abused will not be disturbed 60 . Without such leave, however, the filing of the an- swer is a waiver of irregularities 67 , or defects set up by the demurrer, and even of the demurrer itself or the right to rely upon it 68 . The waiver, though, extends only to the objections to the ruling of the court with reference to the form of the pleading 69 , for if the complaint fail to state facts sufficient to constitute a cause of action the objection may be taken advantage of even after all the evidence is in. Sec. 374. While there are many decisions sup- porting the rules announced in the preceding sec- tion and a majority of them do 70 , we cannot but agree with the fewer cases supporting a con- trary doctrine. There is no inherent justice in hold- 63. Thalhelmer v. Crow. 13 Oolo. 397 ; 22 Pac. 779. 64. Ourtiss v. Bachman. 84 Cal. 216 ; 24 Pac. 379. 65. Powell v. Ry. Co., 14 Oreg. 22 ; 12 Pac. 83. 66. Corson v. Neatheny, 9 Colo. 212 ; 11 Pac. 82. 67. Bell v. Ry. Co.. 4 Wall. 598 ; 18 L. Ed. 338. 68. Irwin v. Henderson. 2 Cranch C. C. 167 ; Fed* Cas. No. 7084. Madden v. Occidental Co.. 86 Cal. 445; 25 Pac. 5. Earth v. Denel, 11 Colo. 494; 19 Pac. 471. Young v. Martin, 8 Utah, 484; 24 Pac. 909. Loukey v. Wells. 16 Nev. 271. 69. Anderson v. No. Pac. Lbr. Co.. 21 Oreg. 281 ; 28 Pac. 6. 70. Lynch v. Bechtel, 19 Mont. 548; 48 Pac. 1112. Flnney v. Randolph, 68 Mo. App. 557. Elliott v. Field. 21 Colo. 378; 41 Pac. 504. Geiser Co. v. Krogman, 111 la. 503; 82 N. W. 938. Baker v. Fawcett, 69 111. App. 300. BerthoJdt v. O'Hara. 121 Mo. 88; 25 S. W. 845. Car Co. v. League, 25 Colo. 129; 54 Pac. 642. Hammersmith v. Avery. 18 Nev. 225 ; 2 Pac. 55. PLEADING. 375 ing a party to have waived error by pleading over after a demurrer interposed by him has been over- ruled. If the objection be to merely formal defects, no real harm could come to a party by holding him strictly to his election, but as to those matters af- fecting his substantial rights, just reasoning de- mands that he be not required to place an estimate of infallibility upon his judgment; and under the strict rule above announced, a party demurring may with just reason hesitate to rest upon his over- ruled demurrer lest an error of judgment on his part imperil his case and shut him out of a meri- torious defense. But under the rule, he must so wager his rights against his judgment and if he lose, be forever precluded from any defense at all 71 . Every lawyer who has had experience at the bar can recall with what trepidation he has staked the interests of his client on his own judgment that error has been committed by the trial court in the overruling of a demurrer; or with what regret and feeling of injustice he has been compelled to file an answer, fearing to stake so much on his judgment, yet feeling certain that error has been committed. And to know that a rule permitting an exception to the overruling of the demurrer, and a subsequent answer without waiving the exception would preju- dice neither party is stronger persuasion in favor of the rule. C. MIS-JOINDER (1) OF PARTIES: Sec. 375. Defect or mis- joinder of parties appearing on the face of a complaint is ground for demurrer, and when not ap- 71. Hurley v. Ryan, 119 Cal. 71; 51 Pac. 20. Pence v. Durbln, 1 Idaho, 550. Seaboard Co. v. Woodson, 94 Ala. 143; 10 So. 87. 376 THE LAW OP WAIVER. pearing on the face of the complaint, objection thereto may be taken by answer. If no such objec- tion be taken, either by answer or demurrer, it is waived 72 . Therefore, defect of parties defendant cannot be questioned for the first time in the appel- late court when it appears that the persons who ought to have been made defendants are not indis- pensable parties 'and that a decree can be entered between the parties to the action without them 78 . But the rule is not applicable if the omitted party be indispensable to a complete determination of the action 74 . Nor will the filing of an answer after the overruling of a demurrer for such cause be a waiver of the defect 75 . And it is said that a general de- murrer admits the sufficiency of the parties, but the defect may afterwards be raised by answer 76 , but that it cannot be raised by an objection to the intro- duction of evidence 77 . (2) OF CAUSES OF ACTION : Sec. 376. The codes usually make mis- joinder of causes of action a ground of demurrer. But whatever the mode prescribed to be taken, the objection must be made in the trial court or it will be deemed to have 72. Mather v. Dunn, 11 S. Dak. 196 ; 76 N. W. 922 ; 74 A. S. R. 788. Summers v. Heard, 66 Ark. 550; 50 S. W. 78; 51 S. W. 1057. Swartzel v. Karnes, 2 Kans. App. 782 ; 44 Pac. 41. Franke v. St. Louis, 110 Mo. 516; 19 S. W. 938. Stephens v. Harding, 48 Neb. 659 ; 67 N. W. 746. Passumpsic Bank v. Buck. 71 Vt 190 ; 44 Atl. 93. 73. Great West. Co. v. Woodmas Co., 12 Colo. 46; 20 Pac. 771; 13 A. S. R. 204. Conklin v. Barton, 43 Barb. 435. Seeding v. Bartlett. 35 Mo. 90. 74. Peck v. Peck, 33 Colo. 421; 80 Pac. 1063. 75. Town v. Long, 144 Cal. 362 : 77 Pac. 987. 76. Johnson v. Bott, 18 Colo. App. 469; 72 Pac. 612. Qrisson v. Hofius. 39 Wash. 51 ; 80 Pac. 1002. 77. Dickerson v. Spokane, 26 Wash. 292; 66 Pac. 381. PLEADING. 377 been waived 78 . The objection must be taken by a special demurrer, for a general demurrer is a waiver of the objection 79 , and the same result fol- lows from pleading over 80 . Some statutes, how- ever, provide that a demurrer and answer may be filed together, in which event the demurrer is not waived by the answer 81 . D. INCAPACITY OF PLAINTIFF : Sec. 377. The states which have adopted the code sys- tem make the objection that plaintiff has not legal capacity to sue a ground of special demurrer if the defect appears on the face of the complaint or peti- tion, and if it does not so appear the defect must be set up and relied upon in the answer. And the failure to so take advantage of it prior to the trial is a waiver of it 82 . A general demurrer is not suf- ficient to reach the objection, for the facts showing the capacity of the plaintiff to sue are not facts con- stituting the cause of action 83 . Thus, if plaintiff be a foreign executor and, therefore, not qualified to sue, the objection must be made by demurrer if 78. Maisenbacker v. Society, 71 Conn. 369; 42 Atl. 67; 71 A S. R. 213. McKune v. Mill Co., 110 Cal. 480 ; 42 Pac. 980. Porter v. Banking Co., 36 Neb. 271; 54 N. W. 424. Jones v. Hughes, 16 Wis. 683. Henney Co. v. Higham, 7 N. Dak. 45; 72 N. W. 911. Barlow v. Leavitt. 12 Gush. 483. Corbett v. Wrenn, 25 Oreg. 305 ; 35 Pac. 658. Youngs v. Leely, 12 How. Pr. 395. White v. Delschneider, 1 Oreg. 254. Fuhn v. Weber. 38 Cal. 636. 79. Ruhling v. Hackett, 1 Nev. 360. Daggett v. Gray, 110 Cal. 169; 42 Pac. 568. 80. Shoelkoff v. Leonard, 8 Colo. 159; 6 Pac. 209. 81. State t?. Edwards, 33 Utah, 243; 93 Pac. 720. 82. Meyer v. Earth, 97 Wis. 352 ; 72 N. W. 748 ; 65 A. S. R. 1J4. Palmer v. Davis, 28 N. Y. 242. Miller v. Luco, 80 Cal. 257 ; 22 Pac. 195. 83. Bank v. Edwards, 11 How. Pr. 216. Myers v. Machado, 6 Abb. Pr. 198. 378 THE LAW OF WAIVER. the complaint disclose the incapacity, or by answer if it do not, for otherwise, objection at the trial would be overruled 84 . E. WAIVEE OF ERROR IN OVERRULING DEMURRER : Sec. 378. Where a demurrer is filed to a pleading and is sustained by the court, any er- ror in the order sustaining the demurrer is waived by filing an amended pleading covering the points raised by the demurrer 85 , and the same is true if the pleading is an amendment of an amendment 86 ; and even in a case where the court refused to permit the amended pleading to be filed, the offer to file it was held a waiver 87 . F. OBJECTIONS TO VENUE: Sec. 379. The county in which an action shall be tried may be agreed upon by the parties. Or if the county in which the action is brought is not the proper one for the trial thereof, the action may nevertheless be tried therein unless the defendant by proper objec- tion demand that it be tried in the county prescribed by law. But the objection must be raised prior to trial or it will be deemed waived. And any conduct on the part of the defendant manifesting satisfaction with the venue until after the trial, or his abiding 84. Robbing v. Wells, 26 How. Pr. 15. And see: Connor's Adm. v. Paul, 12 Bush 144. Duncan v. Whedbee, 4 Colo. 143. Mullin's Appeal, 40 Wls. 1E4. Wright v. Wright, 72 Ind. 149. S. W. Ry. Co. v. Paulk, 24 Ga, 370. Rucks v. Taylor, 49 Miss. 560. Palmer v. Ins. Co., 84 N. Y. 67. Gregory v. McCormick, 120 Mo. 657; 25 S. W. 565. 85. Gowan v. Gilson, 142 Ind. 328; 41 N. E. 594. Scheiber v. Tel. Co., 153 Ind. 609 ; 55 N. E. 742. Louisville R. Co. v. House, 104 Tenn. 110; 56 S. W. 838. Roderick v. Ry. Co., 7 W. Va. 54. 86. Brown v. Case Plow Works, 9 Kans. App. 685 ; 59 Pac. SOI. 87. Anthony v. Slayden. 27 Colo. 144 ; 60 Pac. 826. PLEADING. 379 by it until the matter has proceeded to a hearing will be sufficient to constitute a waiver. Sec. 380. The venue of an action has always been a privilege which the defendant could exact or waive, even as to districts. The right of a defendant to be sued in that of his domicile may be waived, and is waived by his failure to object 88 . If to be sued in the district of one 's domicile is in the nature of a personal exemption or privilege which may be waived, surely to be sued in a certain division of that district is of a like nature and may be waived. Under the act of Congress of February 18, 1875 89 , which exempted national banks from suits in state courts in counties other than the county in which the bank was located, it was held that such exemption was a personal privilege which could be waived and was waived by appearing in a suit brought in another county and not claiming the immunity thus granted 90 . Thus, where on motion of the defendant the action was transferred to and tried in the judicial division of its residence, the objection to the venue of the action which might have been raised was waived by such procedure 91 . And a stipulation for the removal of a cause to another county waives an objection that it was not brought in the proper county 92 , as does 88. Central Trust Co. v. McGeorge, 151 U. S. 129; 38 L. Ed. 98. 89. 18 Stat. At. L. 316, Chap. 80. 90. First National Bank v. Morgan. 132 U. S. 141; 32 L. Ed. 282. 91. Nelson v. Willamette, 70 Fed. 374; 31 L. R. A. 715, citing: Barry v. Foyles, 26 U. S. 1 ; 1 Pet. 314 ; 7 L. Ed. 158. Pollard v. Dwlght, 4 Cranch 421 ; 2 L. Ed. 666. Harkness v. Hyde, 98 U. S. 476 ; 25 L. Ed. 237. St. Louis Ry. Co. v. McBryde, 141 U. S. 127 ; 35 L. Ed. 659. Eddy v. Lafayette, 49 Fed. 807 ; 4 U. S. App. 247. 92. Gay v. Brlerfield Co.. 94 Ala. 303; 11 So. 353; 33 A. S. R. 1*2: 16 L. R. A. 564. 380 THE LAW OF WAIVES. also the appearance of the defendant and filing an answer in the cause 93 . Sec. 381. Where there has been a change of venue granted, any objections to such change are waived by a general appearance filed in the court to which the cause is sent 94 . This is especially true if the parties proceed to trial 95 , or file pleas in the cause 96 ; or even if a motion for a continuance be filed, the mover thereby waives the right to object 97 . 3. IN ATTACHMENTS AND GARNISH- MENTS : A. DEFECTS IN AFFIDAVIT : Sec. 382. Where defects exist in an affidavit filed as a basis for an attachment, they are fatal to the proceeding if taken advantage of at the proper time and in the proper manner. But they must be so taken advan- tage of as they are not matters which courts will judicially notice unless they are called to their atten- tion by proper objections by the party affected by them. Thus, where the averments of the affidavit are traversed in the regular manner by the defend- ant, and the matter proceeds to trial upon such traverse without any objection to the sufficiency of the affidavit, and the issues are found against the 93. Granville, etc. v. State Board, 106 N. Car. 81; 10 S. E. 1002. Bishop v. Silver Lake Co.. 62 N. H. 455. Ohio Ry. Co. v. Morey. 47 Oh. St. 207; 24 N. E. 269; 7 L. R. A. 701. Sheenan Co. v. Sims, 36 Mo. App. 224. Benev. Assoc. v. Woods, 21 111. App. 372. McLemore v. Scales, 68 Miss. 47 ; 8 So. 844. 94. Schaeffner's Est., 45 Wis. 614. Street v. Chapman, 29 Ind. 142. 95. Waller v. Logan, 5 B. Mon. 515. Yater v. State, 58 Ind. 299. Prussel v. Knowles, 5 Miss. 90. 96. Burnham v. Hatfleld, 5 Blackf. 21. 97. Solomon v. Norton, 2 Ariz. 100; 11 Pac. 108. PLEADING. 381 defendant, such proceedings without calling the At- tention of the court to defects in the affidavit amount to a waiver of such defects, and they cannot later be urged as ground for reversal 98 . The rule is the same whatever the defect in the affidavit, but it will not be invoked to render valid an attachment pro- ceeding carried on without the filing of an affidavit, for such affidavit is the basis upon which the entire proceeding rests. B. DEFECTS IN WEIT: Sec. 383. The rule above mentioned as applying to defects in affidavits in attachment and garnishment proceedings is equally applicable if the defects are in the writ is- sued upon such affidavit. They must be taken ad- vantage of before trial and in the court below or the defects are waived and the proceeding will be as valid as if the writ had been regular in all details. Or, as it is said, defects in an attachment writ are waived where the defendant appears in the action and makes no objection in the trial court". In this case the writ was issued by the clerk of the probate court instead of the clerk of the district court. But where the defendant in an attachment suit died be- fore service of the writ upon him, and his executrix, after her motion to quash the writ had been over- ruled, appeared and filed an answer in the principal suit, such appearance did not waive or cure the want of service upon her intestate 100 . If a defendant in an attachment suit execute a re-delivery bond, he is held to have acknowledged notice of the suit and to be bound to enter his appearance or suffer default 98. De Stafford v. Gartley, 15 Colo. 33 ; 24 Pac. 580. Rice v. Hamptman, 2 Colo. App. 565 ; 31 Pac. 862. 99. Romero v. Wagmer, 3 N. Mex. 167 ; 3 Pac. 50. 100. Thompson v. White, 25 Colo. 226 ; 54 Pac. 718. 382 THE LAW OF WAIVEE. to be taken against him 1 . But the giving of such a bond is not a waiver of the right to have the writ rightfully issued 2 , nor is it a waiver of irregulari- ties in the attachment proceedings 3 . Of course a general appearance by the defendant and a traverse of the allegations of the attachment affidayit con- stitute a waiver of all defects in the notice or its publication 4 , for by such appearance the defendant submits himself to the jurisdiction of the court, which is all that could be accomplished by the writ or notice. But a waiver that would be effective be- tween the plaintiff and defendant might not be bind- ing upon third parties. Thus, where an attachment was levied upon real estate, and the defendant was not served, and the case was prosecuted to judgment on publication of notice to him; and after the sale of the land on execution the defendant appeared and moved to set aside the judgment not only on account of the illegality of the publication but because the judgment was rendered on insufficient evidence ; this was held to be an appearance to the merits and a submission to the jurisdiction of the court which, so far as the defendant was concerned, might cure the original defects ; but that it did not so far validate the proceedings db initio as to vitiate a conveyance of the land made by him during the pendency of the attachment proceedings 5 . I. Richard v. Mooney, 39 Miss. 857. Blyler v. Kline. 64 Pa. St 130. Peebles v. Weir, 60 Ala. 413. Chastaln v. Armstrong, 85 Ala. 216 ; 8 So. 78S. X. Avet v. Albo. 21 La. Ann. 349. I. New Haven Co. v. Raymond, 76 la. 225 : 40 N. "W. 4. Williams v. Stewart, 3 Wis. 773. i. Anderson v. Coburn, 27 Wis. 658, cited in: Drake on Attachment. Art 446a. PLEADING. .383 C. WAIVER OF ATTACHMENT LIEN: Sec. 384. Courts do not cling as strictly to waivers of attachment liens if the question arise only be- tween the attaching plaintiff and defendant as where the rights of other attaching creditors are involved. It was held that where the first of several attachers having a claim large enough to absorb all the prop- erty attached, by agreement with the defendant took all the property in satisfaction of the debt and dis- continued the suit, as against subsequent attachers who perfected their respective liens by judgment and execution, the first attacher waived his lien and ob- tained no title to the property 6 . But in the absence of rights of other attachers or of third parties, an attaching creditor does not waive his lien by taking judgment and selling the attached property while an appeal from the order dissolving the attachment is pending 7 . And mere irregularities in an attach- ment proceeding do not affect the attachment so as to give subsequent attachers the right to make them- selves parties for the purpose of defeating the ac- tion 8 . D. WAIVER BY GARNISHEE: Sec. 385. A garnishee may waive defects in an affidavit upon which the proceeding is based the same as a defend- ant may. Thus, where a garnishee appears and an- swers and proceeds to a hearing upon citation issued 6. Brandon Iron Co. v. Gleason, 24 Vt. 228. Cole v. Wooster, 2 Conn. 203, cited in: Drake on Attachment. Art. 262. 7. Ryan v. Maxey, 14 Mont. 81; 35 Pac. 515. 8. Seibert v. Switzer. 35 Oh. St. 661. Henderson v. Stetter, 31 Kans. 56; 2 Pac. 849. Scrivener v. Dietz. 68 Cal. 1 : 8 Pac. 609. Nenny v. Schluter. 62 Tex. 327. Rudolph v. McDonald, 6 Neb. 163. Bank v. Jandon. 9 La. Ann. 8. THE LAW OF WAIVER. on an affidavit for an order for the examination of himself as garnishee, any objection to the sufficiency of the affidavit 9 or of the service of the writ 10 is thereby waived. But it is said that when the sum- mons is void for not complying with the require- ments of a statute, an appearance and answer by the garnishee will not waive the defects, and the court will acquire no jurisdiction, especially if the defendant be a non-resident and make no appear- ance 11 . 4. IN CRIMINAL PROCEDURE: A. JURISDICTION: Sec. 386. The prin- ciples hereinbefore adverted to as affecting juris- diction of courts in civil actions are analagous to those applicable in criminal cases. A court to ren- der its acts valid and enforceable, must acquire and exercise proper jurisdiction over the person of the defendant as well as take lawful cognizance of the offense with which he is charged. And here, the same as in civil jurisprudence, jurisdiction over the person may be given by a voluntary appearance of the defendant, or the want of it may be waived by his pleas entered in the proceedings as if he had been brought before the court by the successive formalities of the law 12 . But jurisdiction of an of- fense is a matter derived solely by virtue of pro- 9. Coffee v. Haynes, 124 Cal. 561; 57 Pac. 482; 71 A. S. R. 99. 10. Wisecarver v. Braden, 146 Pa. St. 42 ; 23 Atl. 393. Rosenberg v. Chaflin Co., 95 Ala. 249; 10 So. 621. 11. Phoenix Co. i>. Street, 9 Okla. 422; 60 Pac. 221. 12. Rutter v. State. 1 la. 99. People v. Myers, 1 Colo. 508. Mills v. Commonwealth. 13 Pa. 627. U. S. v. Rogers, 23 Fed. 658. State v. Kinney, 41 la. 424. PLEADING. 385 visions of law and can in no event be imparted or conferred by consent of the party who is to be af- fected thereby. So, it follows that a defendant can- not waive the question of the jurisdiction of the court over the offense and any attempt to do so will render the whole proceeding void, including sentence if it has been passed, and the court may release the prisoner on habeas corpus 13 , or the objection may even be raised in an appellate court 14 , and such a case cannot be carried into the appellate court by agreement 15 . Sec. 387. As noted above, however, it is only the right given by law to be tried by a court having proper cognizance of his offense which a defendant cannot waive. All other objections touching the court's jurisdiction he may insist upon or waive as he may think best suited to his interests. Thus a prisoner has the right to be brought to the state which is the scene of the offense charged against him, by proper extradition papers ; but if he volun- tarily accompany the officer without the use of such papers, he thereby waives such right and cannot thereafter object to the regularity of the papers 16 . B. NO OFFENSE CHAKGED IN INDICT- MENT: Sec. 388. Since the principles governing in civil actions, as hereinbefore noted, are to be ap- plied to criminal cases in so far as they may, it fol- 13. Rice v. State, 3 Kans. 141. People v. Durell. 1 Idaho 30. Reich v. State. 53 Ga. 73. Ex Parte Snyder, 64 Mo. 58. Simpson v. U. S., 9 How. 571 (U. S.) 14. Jackson v. Commonwealth. 13 Gratt. 801. 15. Rutter v. State. 1 la. 99. People v. Myers, 1 Colo. 508. 16. State v. Cutshall. 109 N. Car. 764 ; 14 S. E. 107 ; 26 A. S. R. 599. 386 THE LAW OF WAIVER. lows that as in civil actions the complaint or petition must state a cause of action which requirement can- not be waived by the defendant so the indictment or complaint in a criminal prosecution must charge an offense against the defendant, or the proceeding or any judgment rendered thereon will not be sus- tained. And this requirement cannot be waived by the defendant 17 , although statutes have provided means for liberal amendments of defective charges. There can be no legal punishment without an accusa- tion, and every wrongful fact with each particular modification thereof which, in law, is required to be taken into account in determining the punishment upon a finding of guilty, must be alleged in the in- dictment. For in every criminal prosecution the accused shall enjoy the right to be informed of the nature and cause of the accusation against him 18 , and this rule requires that the indictment or infor- mation shall contain the essential elements of the crime charged 19 . C. FORMER JEOPARDY: Sec. 389. The right of a defendant not to be put in jeopardy a sec- ond time for the same offense is as sacred as the right to a trial by jury, and is guarded with as much care by the common law and the constitution 20 . But it is a right which may be availed of by a defendant only by a special plea for the support of which it is necessary to show the legal conviction or acquittal of the defendant in a court of competent jurisdic- tion and also the identity of the person convicted or acquitted and the offense for which he was tried. 17. Pattee v. State. 109 Ind. 545 : 10 N. E. 421. 18. U. S. Const Amend. Art. 6. 19. Rig-fra v. State. 104 Ind. 262 ; 3 N. E. 886. >. Dinkey v. Commonwealth. 17 Pa. St. 126; 55 A. D. 542. PLEADING. 387 The special plea must be made in the trial court or this defense will be deemed waived 21 . And when- ever a verdict, whether valid in form or not, has been rendered on an indictment, either good or bad, and the defendant moves in arrest of judgment or applies to the court to vacate a judgment already entered for any cause, as for many causes he may, he will be presumed to waive any objection to being put a second time in jeopardy and .so he may or- dinarily be tried anew. If the verdict against the prisoner is wrong, and it was produced by some er- ror of the court to which he objected, a just view of the constitutional guaranty would permit him to have the error corrected without waiving his right to object to a second jeopardy. Still the practice in most cases has been otherwise 22 . And while the plea is not permissible as a defense under the gen- eral issue and must be specially pleaded 23 , it is said that such is not necessary where two trials of the same case were in the same court 24 . Sec. 390. As to what constitutes a second jeop- ardy is a matter upon which not all courts agree, and it is a question with which we are not here to contend. Our object in these lines is to present the principles and proceedings by which a defendant is held to have waived or surrendered, or not to have waived or surrendered the protection in this behalf which organic law has guaranteed to him. And one of the primary principles in this regard is that the 21. In re Allison, 13 Colo. 525 ; 22 Pac. 820 ; 16 A. S. R. 224. 22. Bishop, Crlm. Law, Sec. 998-9, cited and followed In: Jones v. State, 25 Tex. App. 716 ; 8 A. S. R. 452. 23. Rickles v. State, 68 Ala. 538. State v. Morgan, 95 N. Car. 641. 34. Robinson v. State. 21 Tex. App. 160; 17 S. W. 632. Foster v. State, 25 Tex. App. 544 ; 18 S. W. 664. 388 THE LAW OF WAIVER. procuring of a new trial is a waiver of the privilege, for the defendant thereby consents to the second trial, and the rule applies that a party cannot ob- ject to that to which he has consented 25 . The rea- sons are obvious in criminal cases and have been well stated thus : The new trial is often the convicted prisoner's only safeguard left. Deny him that on the plea that he shall not twice be put in jeopardy for the same offense, and you stab him to the heart with the weapon intended only for his security and de- fense. Such a construction of the rule would let him be hung, however innocent, in order to avoid the hazard of life or limb against which he is to be se- cured by the rule made for his benefit. Judges may be perplexed in giving interpretation and applica- tion to the rule, and may stick in the bark in so do- ing; but it seems that an innocent man, or guilty either, convicted wrongfully and sentenced to be hung, with the halter around his neck, could not be long nor doubtful in deciding for himself which con- struction of the rule was for his interest and neces- sities, which was in harmony with the spirit of jus- tice and humanity that dictated the prisoner's safety 26 . Sec. 391. But the right to interpose a plea of former jeopardy was held not waived by the filing 25. Gannon v. People. 127 111. 507: 21 N. E. 525; 11 A. S. R. 147. State v. Hart. 33 Kans. 218; 6 Pac. 288. State v. Jenkins. 84 N. Car. 812. Kendall v. State. 65 Ala. 492. State v. Patterson, 88 Mo. 88. Territory v. Dorman. 1 Ariz. 56; 25 Pac. 516. Cochrane v. State, 6 Md. 400. Small . State. 63 Ga. 386. State v. Blaisdell. 59 N. H. 328. State v. Knouse. 33 la. 365. 26. Younser v. State. 2 W. Va. 579 : 98 A. D. 791. Sutcliffe v. State. 18 Oh. 469 ; 51 A. D. 459. PLEADING. 389 of a motion to set aside a verdict rendered by the jury in the absence of the defendant 27 , the court not- ing that a distinction existed between such a pro- cedure and a motion for a new trial. This proposi- tion, however, has been denied on the theory that such absence was itself a waiver 28 . The criterion, it occurs to us, should be whether or not he volun- tarily absented himself. Sec. 392. Fraud has the effect of vitiating pro- ceedings in a criminal prosecution as much as in a civil action. And where it is practiced by a defend- ant to procure his acquittal, it constitutes a waiver of his right not to be twice put in jeopardy for the same offense 29 . And while not constituting a waiver which can be produced only by some act of the defendant himself the result is the same if the fraud be the work of a third party and unknown to the defendant 30 . The fraud may be a prosecution sought and procured by the defendant himself in the hope of escaping a subsequent prosecution and heavier punishment, but whatever it may be, the prisoner, by such fraud, bars himself from the right to say that he has once been prosecuted on the charge and should not again be put in jeopardy 31 . 27. Nolan v. State. 55 Ga. 521; 21 A. R. 281. Cook v. State. 60 Ala. 39; 31 A. R. 31. 28. Temple v. Commonwealth, 14 Bush 769; 29 A. R. 442. 29. State v. Swepson, 79 N. Car. 632. 30. State v. Washington, 89 N. Car. 535 ; 45 A. R. 700. 31. State v. Simpson. 28 Minn. 66; 9 N. W. 78; 41 A. R. 269. Watkina v. State. 68 Ind. 427 ; 34 A. R. 273. Big-ham v. State. 59 Miss. 529. State v. Reed. 26 Conn. 202. Commonwealth v. Dascom, 111 Mass. 404. Warriner v. State, 3 Tex. App. 104 ; 30 A. R. 124. McParland v. State. 68 Wis. 400; 32 N. W. 226; 60 A. R. 867. State v. Cole, 48 Mo. 70. State v. Nichols, 38 Ark. 550. 390 THE LAW or WAIVBE. CHAPTER 15. CRIMINAL PRACTICE. Sectiom 1. IN GENERAL 393 2. RIGHT TO JURY TRIAL 394 3. JURY OF FEWER THAN TWELVE 396 A. In Felonies 397 B. In Misdemeanors 398 4. WAIVER OF PRIVILEGE FROM SELF-CRIMINA- TION 399 6. RIGHT OF ACCUSED TO BE PRESENT AT TRIAL. 403 A Crimes Less Than Capital 404 B. Capital Offenses 405 C. Who May Waive The Right 406 1. IN GENERAL: Sec. 393. The following considerations in the chapter on Civil Practice cover a greater part of the field of criminal practice, as the rules treated are equally applicable to the two. But it is necessary to here consider a few subjects strictly under the operation of the rules and prin- ciples of practice in criminal cases. As far as the law of waiver has to do with the practice in crim- inal cases, it may be noted that, while in civil ac- tions, a party having knowledge of a right belong- ing to him may insist upon that right or waive it as he may think best suited to his interests, such is not true in criminal actions as to all rights which a defendant has, for some of these he cannot be de- prived of even with his own consent. 2. EIGHT TO JURY TRIAL: Sec. 394. Some differences of opinion exist among the authori- ties as to the power of an accused to waive the right to be tried by a jury and submit the question of his guilt to the court. The trend of the authorities CRIMINAL PRACTICE. 391 seems to be, however, to the principle that in fel- onies a defendant cannot waive this right but that in misdemeanors he may, the distinction thus made being based upon the proposition that defendants in the latter class of cases were not absolutely given a jury trial at common law, therefore such was not fully guaranteed to them by the Constitution 32 . We recognize this principle as one adhered to by nearly all the authorities, but we confess to a hesitancy in accepting as our own conclusion the propriety of allowing a defendant in one class of cases to forego his right to a jury trial and refusing the discretion to a defendant in another class of crimes. Eeason would dictate that the grade of the crime should be immaterial. The requirement of a jury trial is se- cured by the constitution upon a principle of public policy 33 , as well as through considerations for the defendant. And that public policy is contravened and the rights of the accused jeopardized by putting him in a place where temptations may be held out to him to waive a jury trial and take his chances with the court in a case where his crime is one of low grade or one that would subject him to light punishment, as much as where the punishment might be death or life imprisonment. Another dis- tinction has been made between cases in which the constitution or statute gives the accused the right to 32. Dailey v. State. 4 Oh. St. 58. "Ward v. People, 30 Mich. 116. Arnold v. State. 38 Neb. 752 ; 57 N. W. 378. State v. Davis. 66 Mo. 684. State v. Worden. 46 Conn. 349. Darst v. People. 51 111. 286. Murphy . State. 97 Ind. 579. 33. State v. Lockwood. 43 Wls. 405, holding the right to a Jury trial upon indictment or information one which can not be waived ; a doctrine discarded for a more reasonable one ?n : In re Staff, 63 Wis. 285 ; 23 N. W. 587. 392 THE LAW OP WAIVER. a jury trial and those cases where a jury trial is expressly required. In the latter class of cases, it is said that in no event can a jury trial be waived 34 . But it is said that the right may be waived in pros- ecutions for misdemeanors where the right to a jury trial is given by statute in cases which could be tried without a jury at common law 35 . Sec. 395. Judge Cooley says: "The infirmity in case of a trial by a jury of less than twelve, by consent, would be that the tribunal would be one unknown to the law, created by mere voluntary act of the parties ; and it would in effect be an attempt to submit to a species of arbitration the question whether the accused has been guilty of an offense against the state." We suppose the same reason- ing would apply to the waiver of a jury. But this right to a jury is no more pronounced by the con- stitution than other rights given a defendant. He cannot twice be put in jeopardy for the same offense. Yet unless he properly object to an attempt to twice jeopardize him, he will be held to have waived his privilege. And the same is true of his right to have the witnesses confront him, to have a speedy trial, and many other rights conferred upon him by con- stitutional provision. Then where is the difference between felonies and misdemeanors except in the degree of punishment? A misdemeanor may be as disgraceful and humiliating to one man as a felony to another. And while we are aware that the pre- ponderance of authority is in favor of the distinction and refuses to permit a waiver in felony cases, we do think that the better reasoning sanctions a waiver 34. Arnold v. State. 38 Neb. 752; 57 N. W. 378. 35. People v. Weeks, 99 Mich. 86; 57 N. W. 1091. CRIMINAL PRACTICE. 393 in both classes of cases either of the whole jury or any number of jurors, thus giving to the accused an additional benefit of saying whether it is to his own best interests to be tried by the court or a jury. 3. JUEY OF FEWER THAN TWELVE: Sec. 396. The courts are by no means harmonious in their conclusions regarding the power of a de- fendant in a criminal prosecution to waive his right to be tried by the full panel of jurymen as provided by law and consent to be tried by fewer. Although a few cases 36 seem to pronounce the doctrine that an accused person may in all cases waive his con- stitutional right to be tried by the full number of jurors, yet in nearly all cases the question is de- cided by the courts according to the degree of the crime with which the defendant is charged. A. IN FELONIES: Sec. 397. By far the greater number of authorities hold to the doctrine that in cases of felony the constitutional right to be tried by a common-law jury of twelve men cannot be waived, and that a verdict of a jury of fewer than that number, even by consent of the accused, will be set aside as a nullity 37 . To this opinion the Su- preme Court of the United States gives the weight of its authority 38 . There are many considerations and reasons why this doctrine should be enforced. For a criminal prosecution involves public wrongs, a breach and violation of public rights and duties 36. State v. Grossheim. 79 la. 75 : 44 N. W. 541. State v. Kaufman, 51 la. 578; 2 N. W. 275; 33 A. R. 148. State v. White. 33 La. Ann. 1218. And see: Alfred v. State. 6 Ga. 483. 37. State v. Mansfield. 41 Mo. 470. Arnold' v. State. 38 Neb. 752 ; 57 N. W. 378. Allen v. State. 54 Md. 461. 38. Thompson v. Utah. 170 U. S. 343 ; 42 L. Ed. 1061. 394 THE LAW OF WAIVER. which affect the whole community considered as a community, in its social aggregate capacity, and the end such suits have in view is the prevention of similar offenses, not atonement or expiation for crimes committed, and the penalties and punish- ments for the enforcement of which they are a means to an end are not in the discretion or control of the party accused, for no one has a right by his own voluntary act to surrender his liberty or part with his life ; the state, the public have an interest in the preservation of the lives and liberties of its citizens, and will not allow them to be taken away without due process of law when forfeited, as they may be, as a punishment for crime 39 . Therefore, the denial of the right to waive the number of jurors provided by law in felony cases arises from the fact that the substantial constitution of the legal tribunal, and the fundamental mode of its proceeding are not within the power of the parties to modify or deal with in other than the expressly provided manner 40 . B. MISDEMEANOBS: Sec. 398. In misde- meanors, the courts seem very generally to adhere to a doctrine contrary to that announced above as governing the trial for felonies. And in this class of cases the rule is that a defendant may, by his ex- 39. Canceml v. People. 18 N. Y. 128. 40. State v. MoClear. 11 Nev. 41. Carpenter v. State. 4 How. 163 (Miss.) ; 34 A. D. 116. Brazier v. State. 44 Ala. 387. Territory v. Oritz. 8 N. Mex. 154; 42 Pac. 87. Territory v. Ah Wah. 4 Mont. 149 ; 47 A. R. 341. State v. Everett. 14 Minn. 447. Work v. State. 2 Oh. St. 296 ; 59 A. D. 671. People v. O'Neil. 48 Cal. 257. State v. Meyers, 68 Mo. 266. Hill v. People, 16 Mich. 351. State v. Cox. 8 Ark. 436. People v. Guidici. 100 N. Y. 503 : 3 N. E. 49Z. CRIMINAL PRACTICE. 395 press consent, waive a jury of twelve and accept the verdict of a less number, the reason being that the right to a trial by jury of twelve was not in all such cases fully guaranteed to him by the constitution, as it did not exist as an absolute right at common law 41 . 4. WAIVER OP PRIVILEGE FROM SELF- CRIMINATION : Sec. 399. Every person accused of crime is protected by a constitutional privilege from being compelled to give evidence against him- self. Under this protection an accused cannot be required against his will to testify in his own case. But it is not a bar to his testifying if he desires. And all courts agree, either by reason of statutory provision or by construction of the privilege itself that the right may be waived by the accused and that such waiver occurs where he takes the stand in his own behalf. The status of the accused is thereby changed from that of a defendant to that of a witness, and the same as any other witness, he may be compelled to give evidence against himself concerning all matters touched upon in his direct examination. Sec. 400. But the courts are far from harmo- nious as to the extent such waiver operates. On the one hand, it is said that if an accused testify, he is at liberty to stop at any point he chooses, and it must be left to the jury to give a statement which he declines to make a full one, such weight as under the circumstances they think it entitled to; other- wise, the statute must have set aside and overruled 41. Darst v. People, 51 111. 286 ; 2 A. R. 301. Commonwealth v. Dalley, 12 Cush. 80. State v. Borowsky. 11 Nev. 119. State v. Sackett. 39 Minn. 69; 38 N. W. 773. Warwick v. State. 47 Ark. 568; 2 S. W. 335. 396 THE LAW OF WAIVER. the constitutional maxim which protects an accused party against being compelled to testify against him- self, and the statutory privilege becomes a snare and a danger 42 . Under this rule, when a defendant takes the stand in his own behalf, he waives his privilege as to those matters only concerning which he testifies on direct examination, and his cross-ex- amination must be limited to those matters referred to in his examination-in-chief 43 . Sec. 401. On the other hand, there is a rule adopted by perhaps a majority of the states to the effect that when an accused person takes the stand in his own behalf, he thereby establishes a complete waiver of his constitutional privilege of refusing to give testimony against himself, and may on cross- examination be asked any question pertinent to the issue or calculated to test his accuracy, veracity or credibility 44 . If this rule stopped here, it would not 42. Cooley's Constitutional Limitations, 384-6 (6th Ed.). 43. State v. Chamberlin, 89 Mo. 120 ; 1 S. W. 145. State v. Saunders, 14 Oreg. 300 ; 12 Pac. 441. State v. Underwood, 44 La. Ann. 852. People v. Wong Ah Leong, 99 Cal. 440 ; 34 Pac. 105. People v. Roemer, 114 Cal. 51 ; 45 Pac. 1003. Mitchell v. State, 94 Ala. 68 ; 10 So. 518. State v. Gallo, 18 Oreg. 425; 23 Pac. 264. Howard v. Commonwealth, 22 Ky. L. R. 1845 ; 61 S. W. 756. State v. O'Hara, 17 Wash. 525 ; 50 Pac. 477 ; 94 A. S. R. 864. 44. Spies v. People, 122 111. 1; 12 N. E. 865; 3 A. S. R. 320. People v. Tice, 131 N. T. 651; 30 N. E. 494; 15 L. R. A. 669; directly declaring the rule announced by Cooley to be out of harmony with the authorities and unsound in principle. State v. Callian, 109 La. 346; 33 So. 363. Baker v. State, 58 Ark. 513 ; 25 S. W. 603. Parker v. State, 136 Ind. 284; 35 N. W. 1105. Com. v. Clark, 145 Mass. 251 ; 13 N. E. 888. People v. Sutherland, 104 Mich. 468; 62 N. W. 566. State v. Blitz, 171 Mo. 530; 71 S. W. 1027. Com. v. Mozier, 135 Pa. St. 221; 19 Atl. 943. People v. Larsen, 10 Utah 143 ; 37 Pac. 258. Payne v. State, 40 Tex. Crim. 290; 50 S. W. 363. State v. Cohn, 9 Nev. 179. State r. Weaver, 35 Oreg. 415; 58 Pac. 109. State v. Snyder, 8 Kans. App. 686; 57 Pac. 135. CRIMINAL PRACTICE. 397 be as efficacious in dealing out justice to all parties as the rule first announced. But there is a limitation or qualification of the rule to this extent, that the accused may, on cross-examination, be asked only such questions as elicit matters pertinent to the issue or such as may be proved by other witnesses 45 . Sec. 402. We can see no reason for creating a distinction between a defendant witness and any other witness who is interested in the outcome of the action. In the case of a party to a civil action who takes the stand to testify, the same rules apply to him that apply to any other witness, for his status is changed from that of a party to that of a witness. And the same rules should apply to an accused in a criminal trial who testifies for himself, and he should be entitled to the same privileges and subject to the same treatment, and to be contradicted, discredited and impeached the same as any other witness 46 . 5. EIGHT OF ACCUSED TO BE PRESENT AT TRIAL : Sec, 403. It is the right of every per- son on the trial of a criminal charge against him to be personally present at all times during the course of his trial and during the rendition of verdict and the passing of sentence ; and it is irregular to begin his trial without his presence and erroneous to de- prive him of the right without his consent. A. CRIMES LESS THAN CAPITAL : Sec. 404. While it has been held that in the trial for crimes not capital the defendant is entitled to and 45. State v. Curtis, 39 Minn. 357; 40 N. W. 263. Bailey v. State, 67 Miss. 333 ; 7 So. 348. People v. Pinkerton, 79 Mich. 110 ; 44 N. W. 180. State v. Wells, 54 Kans. 160 ; 37 Pac. 105. State v. Clark, 100 la. 47 ; 69 N. W. 257. State v. Pancoast, 5 N. Dak. 514 ; 67 N. W. 1052. 46. State v. Pfefferle, 36 Kans. 90 ; 12 Pac. 416. 398 THE LAW OF WAIVER. must be present during the trial and rendition of verdict, and that a verdict rendered in his absence was void 47 , the better rule is that the right to be present is one which the defendant cannot be de- prived of without his consent, but that by his vol- untary act he may waive the right and the verdict will be valid 48 . The absence must be voluntary in order to constitute a waiver of the right, although it has been held that the accused cannot waive the right whether his absence is voluntary or involuntary 49 . "When a prisoner is so absent, it is usually due to his own act, as where, during the progress of the trial, he absconds; and it is the rule generally ad- hered to that if the defendant flees the court while his trial is pending, he waives his right to be present during the remainder of the trial and is not entitled to be discharged or have a new trial on account of his absence 50 . It is said that while the constitution guarantees him the right to be present, this guaranty was never intended to include the right to abscond and then complain of his own absence 51 . *7. Sneed v. State, 5 Ark. 431 ; 41 A, D. 102. Maurer v. People, 43 N. T. 1. People v. Beauchamp, 49 Cal. 41. M. 1 Bishop's New Crlm. Proc. Sec. 266. State v. Guinness, 16 R. I. 401; 16 Atl. 910. Barton v. State, 67 Ga. 655 ; 44 A. R. 743. State v. Hope, 100 Mo. 347; 13 S. W. 490; 8 L. R. A. 608. Gales v. State, 64 Miss. 105 ; 8 So. 167. State v. Way, 76 Kans. 928; 93 Pac. 159; 14 L. R. A. (N. S.) 603. Peterson v. State, 64 Neb. 875 ; 90 N. W. 964. Hill v. State, 118 Ga. 21; 44 S. E. 820. Btoddard v. State, 132 Wis. 520. 49. Summeralls v. State, 37 Fla. 162; 20 So. 242; 53 A. S. R. 247. Clark v. State, 4 Humph. 254 (Tenn.) 0. State v. Kelley, 97 N. Car. 404; 2 S. B. 185; 2 A. S. R. 299. Com. v. McCarthy, 163 Mass. 458; 40 N. B. 766. U. S. v. Laughery, 13 Blatchf. 267; 26 Fed. Cas. No. 15,631. SI. Gore V. State. 52 Ark. 285; 12 S. W. 664; 5 L. R. A. 832. CRIMINAL PRACTICE. 399 B. CAPITAL OFFENSES: Sec. 405. The rule among the authorities seems to be that in capital offenses the accused not only has the right to be present at all times during the course of his trial when anything is said or done affecting him as to the charge against him, and at the rendition of ver- dict and passing of sentence, but that he must be present, that he cannot waive the right, and that the taking of any steps without his presence renders the proceedings void 52 . C. WHO MAY WAIVE THE EIGHT: Sec. 406. Although there are apparent exceptions 53 , the holding of the courts appears to be that the right of an accused to be present during the progress of a trial and the rendition of verdict and imposing of sentence against him, is a right purely personal to himself; one that cannot be taken from him except by his consent, and one that no other person can forego for him. Consequently, it is held that the right cannot be waived by counsel for the prisoner 54 . 2. State v. Kelley, 97 N. Car. 404; 2 S. B. 186; 2 A. S. R. 299. Sherrod v. State, (Miss.) ; 20 So. 554. 53. Wells v. State, 147 Ala. 140 ; 41 So. 630. Cawthon v. State, 119 Ga. 395 ; 46 S. E. 897. 14. SPercer v. State, 118 Tenn. 765; 103 S. W. 780. Green v. People, 3 Colo. 68. Prlne v. Com., 18 Pa. St. 103. Cook v. State, 60 Ala. 39 ; 31 A. R. 31. 400 THE LAW OF WAIVER. CHAPTEE 16. CIVIL PRACTICE. SUBDIVISION 1. Section 1. OBJECTIONS TO SPECIAL JUDGE 407 2. OBJECTIONS TO JURORS: A. Panel 408 B. Poll 409 3. RIGHT TO JURY TRIAL 412 A. Number Of Jurors 414 4. WITNESSES: A. Oath 416 B. Depositions 417 C. Competency 419 D. Self-crimination 420 (1) Time to claim privilege 422 (2) Privilege must be claimed 423 (3) Extent of waiver 424 SUBDIVISION 2. TRIAL PRACTICE. 1. IN GENERAL 426 2. OBJECTIONS TO EVIDENCE: A. Admission (1) Time to object 428 (2) Specifying evidence and ground of ob- jection (a) In general 431 (b) Incompetency 433 (c) Incompetent, irrelevant and im- material 434 (d) Exceptions to rule 438 (e) Objections abandoned 439 B. Variance 440 3. EXCEPTIONS TO RULINGS OF THE COURT: A. In General 441 B. To Exclusion Of Evidence 443 C. To Admission Of Evidence 444 4. WAIVER AS TO NON-SUITS 447 5. DEMURRER TO THE EVIDENCE 452 . DIRECTING VERDICT . ..455 CIVIL PRACTICE. 401 f. INSTRUCTIONS: A. In General 456 B. Instructions Given 457 (1) Waiver of written instructions 459 (2) Exceptions 460 C. Instructions Refused 463 (1) Exceptions to refusal to instruct 465 D. Time For Exception 467 8. VERDICT 469' 9. FINDINGS OF FACT 470 10. NEW TRIAL. 471 11. WAIVER IN APPELLATE PRACTICE 473 A. Waiver Of Right To Appeal (1) From consent judgments 476 (2) By paying judgment 477 (3) By accepting benefits of judgment 479 B. Notice Of Appeal 482 1. OBJECTIONS TO SPECIAL JUDGE: Sec. 407. Many statutes make provision for the ap- pointment of a special judge in the event of the disqualification of the regular judge or of his in- ability to act. Such special judge is one who takes the place of the regular judge under a temporary appointment for a particular purpose and derives his power to act solely through statutory provision, for there is no inherent power in courts or a judge thereof to delegate such authority to another. If there is no law authorizing or assuming to authorize the appointment of a special judge, any attempted appointment and any acts thereunder are void and of no binding effect 55 . And it has been said that even consent or agreement of parties to an action 55. Smith v. Haworth, 53 Mo. 88. State v. Fritz, 27 La. Ann. 689. Hoagland v. Creed, 81 111. 506. 402 THE LAW OF WAIVER. cannot give validity to the acts of one assuming, un- der such circumstances, the functions of a judge 50 . Where there is an absolute absence of statutory au- thority therefor, the record itself shows that the person assuming to act was without authority to do so, that his acts were invalid, and they may be taken advantage of at any stage of the proceeding. But where the record does not show upon its face objec- tions to the judge so assuming to act, such objec- tions must be made specifically by the party entitled to do so. And the principle ramifying the whole field of the law, that objections are to be made at the first opportunity or are to be deemed waived, is applicable here. Therefore, objections to the com- petency of a special judge must be made with rea- sonable promptitude or they will be held waived 57 . The objections, it is said, must be made before trial 58 , and this is true in a certain sense. But the law does not attempt to require an impossibility; so that a party, before he can be deprived of his right to object, must have knowledge of that right and of the grounds of the objection, or he must be so situ- ated that by the exercise of reasonable care and diligence he could have ascertained them. 2. OBJECTIONS TO JURORS : A. PANEL: Sec. 408. There are many de- fects or irregularities in the formation of a jury 56. HylUs v. State, 4>5 Ark. 478. Haverly Co. v. Howcutt, 6 Colo. 574. But see: Radford Co. v. East Tenn. Co., 21 S. W. S29. 7. Grant v. Holmes, 75 Mo. 109. State v. Whitney, 7 Oreg. 386. State v. Sachs, 3 Wash. 691 ; 29 Pac. 446. Stears v. Wright, 51 N. H. 600. State v. Voorhies, 41 La. Ann. 567; 6 So. 826. Bowen v. Swander, 121 Ind. 164; 22 N. B. 726. tt. Dolan v. Church, 1 Wyo. 187. State v. Qreenwade, 72 Mo. 298. CIVIL PRACTICE. 403 which will render their acts invalid, provided they be taken advantage of at the proper time and in the proper manner by him who is entitled to object. The court will not protect a party in such case un- less he assert his rights. So, if no objection be taken to the empaneling of a jury, it is presumed that both parties are satisfied with the panel chosen and the manner in which they are chosen, and neither party can be heard to object after the case has proceeded on such presumption 59 . So, it is held that a chal- lenge to the polls generally is a waiver of the right to challenge the array 60 . Sec. 409. The same presumption that attaches to the regularity and sufficiency of the jury panel applies when objection could be made to individual jurors. Each party to an action has the right to fully examine each juror offered as an arbiter of his rights, and if either accepts the jury without such examination his right to object is thereby waived, and the qualifications of the jurymen are presumed to be sufficient and satisfactory 61 . And the challenge for all causes of disqualification of a juror known to a party, or which by diligence and reasonable care it is possible to learn, must be made 59. Queenan v. Territory, 11 Okla. 261 ; 71 Pac. 218 ; affirmed In 190 U. S. 548; 23 Sup. Ct. R. 762; 47 L. Ed. 1175. Hardenburgh v. Crary, 15 How. Pr. 307. 60. Mueller v. Rebham, 94 111. 142. Watkins v. Weaver, 10 Johns. 107 (N. T.) See: Weeping Water Co. v. Haldeman, 35 Neb. 139; 52 N. W. 892. 1. Tilton v. Kimball, 52 Me. 500. Wassum v. Feeney, 121 Mass. 93. Lane v. Scoville, 16 Kans. 402. Faville v. Sheehan, 68 la, 241 ; 26 N. W. 131. Daniels v. Lowell, 139 Mass. 56 ; 29 N. E. 222. Manion v. Flynn, 39 Conn. 330. Morrison v. McKinnon, 12 Fla. 552. 404 THE LAW OF WAIVER. before trial and at the earliest opportunity 02 , or otherwise the right of objection will be held waived. Sec. 410. A divergence of opinion exists among the authorities as to whether the disqualification of a juror which is unknown to a party until after trial and verdict is sufficient to entitle him to a new trial when such disqualification is learned. It is said by one line of authorities that in such case a new trial should be granted 63 , and others say that a new trial should be allowed only when the disqualification re- lates to the legal competency of the juror and not to mere bias or prejudice 64 . But if a juror has con- cealed his prejudice or partiality or interest in the cause, the verdict should be set aside upon a sub- sequent discovery of the fact 65 . The true rule to be applied in such cases, it seems to us, is that if a party has used due diligence and care to ascertain the competency of a juror and has been deceived or has failed to discover the disqualifying facts, the verdict should not be allowed to stand to his prej- udice. A waiver of the grounds of objection could not be held against him, for a party can waive no right of which he is ignorant, and after he has availed himself of all the means provided by law for ascertaining the competency of a juror, he has done all that could reasonably be expected of him. Sec. 411. If a challenge for cause has been in- terposed and overruled, it is held that an exception to such ruling is waived if the party subsequently, 62. Johns v. Hodges, 60 Md. 215 ; 40 A. R. 722. 63. Lafayette Co. v. New Albany Co., 13 Ind. 90. Hardy v. Sprowle, 32 Me. 310. Williams v. McGrade, 18 Minn. 82. Essex v. McPherson, 64 111. 349. 64. See: Wassum v. Feeney, 121 Mass. 93. 66. Jeffries v. Randall, 14 Mass. 205. Childress v. Ford, 18 Miss. 25. CIVIL PRACTICE. 405 cause the juror to be excluded under a peremptory challenge 66 . And any error in such ruling is un- doubtedly unavailing on appeal if the juror be ac- cepted by the objecting party without having ex- hausted all of his peremptory challenges 67 , but it is otherwise if all of his peremptory challenges have been exhausted and he is thus compelled to accept the juror objected to 68 . But if a challenge to the array has been overruled, an exception to such rul- ing is not waived by subsequently challenging in- dividual jurors 69 . 3. EIGHT TO JUBYTKIAL: Sec. 412. The right to have a jury try issues of fact is in many cases guaranteed to parties by constitutional pro- vision, and such right cannot be taken away except by consent of the party entitled to it. And such jury, unless otherwise provided or agreed upon, must consist of twelve men. But the right to a jury is personal to the parties and may be waived by them, and such waiver may be either express or im- plied 70 . And while it is true as a general proposi- tion that a waiver of a jury once made is good for all time 71 , yet it has been held that where a jury was waived as to issues formed at the time of waiver, it could not be extended so as to apply where different 66. Burt v. Panjand, 99 U. S. 180. Elliott's App. Pr. Art. 649. 67. St. Louis Ry. Co. v. Lux, 63 I1L 623. State v. Elliott, 45 la. 486. 68. Robinson v. Randall, 82 111. 521. Hubbard v. Rutledge, 57 Miss. 7. 69. Clinton v. Englebrecht, 13 Wall. 434. 70. Love v. Bryson, 57 Ark. 589 ; 22 S. W. 341. Carr v. Sullivan, 68 Hun 246. Smith v. Barclay, 55 N. W. 827 (Minn.) Bonewitz v. Bonewltz, 50 Oh. St. 373 ; 34 N. B. 332 ; 40 A. S. R. 671. Petri v. Bank, 84 Tex. 212 ; 18 S. W. 762. 71. Marsh v. Brown, 57 N. H. 173. 406 THE LAW OP WAIVER. issues were afterwards made on new pleadings 72 . But even where a jury has been waived by the par- ties, the waiver is not binding on the court and it may call a jury 73 . Sec. 413. Many statutes provide means in which a jury may be waived, and the modes prescribed must be followed 74 . But aside from such statutory provision, a variety of conditions have been held suf- ficient to constitute a waiver. Thus, submitting to a reference will produce this result 75 ; and where by consent of counsel the case is set down for trial with- out a jury and the trial actually begins, it is a waiver of a jury trial 76 . And a defendant by not appear- ing at the time a case is called for trial waives the right to a trial by jury in his absence 77 . So, in a mandamus proceeding to try title to a county office, where the defendants submitted the evidence on which they acted to the court, asking the court to inspect the same, such constitutes a waiver of a jury trial, assuming that a jury could be had in such a case 78 . And in some instances the silence of a party or his failure to demand a jury has been held a waiver of his right to a jury trial 79 . Thus, a de- fendant waives his right to a trial by jury where, 72. McGeah v. Nordberg, 65 N. W. 117 (Minn.) 73. Fleming v. Wilson, 39 Wash. 106; 80 Pac. 1104. 74. Swasey v. Adair, 88 Cal. 179 ; 25 Pac. 1119. 75. Lee v. Tillottson, 24 Wend. 337 ; 35 A. D. 624. 76. Polack v. Gurnee, 66 Cal. 266; 5 Pac. 229; 610. 77. Weems v. McDavitt, 49 Kans. 260 ; 30 Pac. 481. Green v. Bulkley, 23 Kans. 131. Even where he has before demanded a jury : McGuIre v. Drew, 83 Cal. 225 ; 23 Pac. 312. 78. Territory v. County Commsrs., 7 N. Mex. 56-8; 37 Pac. 1116. 79. Haley v. Bank, 21 Nev. 127 ; 26 Pac, 64 ; 12 L. R. A. 815. Baird v. Mayor, 74 N. T. 382. Sheets v. Bray, 125 Ind. 33 ; 24 N. E. 357. Grant v. Hughes, 96 N. Car. 177 ; 2 S. E. 339. Pearce v. Albright, 12 N. Mex. 202 ; 76 Pac. 286. CIVIL PRACTICE. 407 after the withdrawal of the plaintiff's request for a jury, and after the clerk has taken the case from the list of cases for trial by jury and has placed it on the waived-jury list, though without any special or- der of court, he makes no complaint and no effort to have the case re-transferred to the jury list until the time when the case is actually reached for trial 80 . And an agreement that the pending action shall abide the result of another action constitutes a bind- ing waiver of the right to try the pending action to a jury 81 . The parties entered into an agreement to relinquish their constitutional right to a jury trial. It was held that such agreement was valid and bind- ing and even broader than a simple waiver in that it was a contract on a sufficient consideration to the performance of which both could be held 82 . A. NUMBER OF JURORS: Sec. 414. The early cases seem to have denied to parties to civil actions the power to waive the right to a full jury and to consent to a jury of fewer than twelve. Thus, it was said that the common law right of trial by a jury of twelve could not be waived either di- rectly or indirectly, and if a trial by jury was de- manded and refused, the right was not waived by the subsequent trial by the court 83 . But this doc- trine has long since been departed from, and it is now almost universally held that the parties may waive the right to trial by a jury of twelve or any other number that may be provided by law 84 . But 80. Stevens v. McDonald, 173 Mass. 382; 53 N. E. 885; 73 A. 8. R. 300. 81. Cuiran'ings v. Smith, 50 Me. 568 ; 79 A. D. 629. 82. Lanahan v. Heaver, 77 Md. 605 ; 26 Atl. 866 ; 20 L. R. A. 769. 83. Norval v. Rice, 2 Wls. 22, followed in: May v. Milwaukee Co., 3 Wls. 219. 84. Scott v. Russell, 39 Mo. 407. Marlin v. Stockbridge, 14 Tex. 165. 408 THE LAW OF WAIVER. the parties are absolutely entitled to have their cause tried by the full number and nothing short of their consent can deprive them of this right 85 ; and it is said that the consent must be recorded or the judgment will be set aside 86 . And a waiver cannot be inferred merely from the absence of the adverse party, although his absence is considered a consent that the case be tried to the court 87 . So, during the progress of the trial the court has no right to with- draw one of the jurors and proceed with those re- maining, without the consent of the parties 88 , but it is held a waiver where the parties consent to the withdrawal 89 . Sec. 415. However, even though the record fail to show a submission by consent of parties to a jury of eleven, still the right to a full jury may be waived by failure to assign the matter complained of as grounds for a new trial 90 . And where the objection is first made upon appeal, it is conclusively pre- sumed that the parties waived their right to the full number of jurors 91 . But aside from technical considerations, the right to a full number of jurors is an individual right within individual control and may be parted with at pleasure, and an irrevocable waiver of the right occurs where a party consents to a trial by a fewer number than that regularly provided for 92 . Yet in the absence of such waiver, 85. Bishop v. Mugler, 33 Kans. 146 ; 5 Pac. 756. Van Sickle v. Kellogg, 19 Mich. 49. 86. Brown v. Hannibal Co., 37 Mo. 298. 87. Gillesple v. Benson, 18 Cal. 409. 88. Cloud Co. Com. v. Morgan, 7 Kans. App. 213 ; 52 Pac. 896. 89. Tram Lbr. Co. v. Hancock, 70 Tex. 312 ; 7 S. W. 724. 90. Mitchell v. Stevens, 23 Ind. 466. 91. Martin v. Stockridge, 14 Tex. 165. 92. Clague v. Hodgson, 16 Minn. 329. Roach v. Blakey, 89 Va. 767; 17 S. E. 228. City of Huron v. Carter, 5 S. Dak. 4 ; 57 N. W. 947. Rhode* v. Mattox, 135 Ind. 372; 34 N. E. 326; 35 N. E. 11. CIVIL PRACTICE. 409 a defendant is not to be held responsible for the right construction of the jury in point of numbers, nor for the fault of the proper officers in that re- spect 93 . 4. WITNESSES A. OATH: Sec. 416. It is required by law and by rules of practice that a witness shall first be sworn to tell the truth, the whole truth and nothing but the truth before he can be interrogated concern- ing the matters at issue in the pending case. It is the duty of the party calling a witness to see that this formality of qualifying the witness is gone through with. But a failure in this respect is not necessarily fatal to any rights involved in the ac- tion, for if the opposite party permit the witness to proceed with his testimony without raising objec- tion when he could have done so, the irregularity will be waived and the testimony allowed to stand as if the oath had been duly administered 94 . And it is equally true that if a party examine a witness knowing that the latter has not been sworn, yet make no objection on that account, the failure in ad- ministering the oath is waived; for the party must object at the earliest possible moment. And this rule applies whether the witness be present testify- ing in court or his testimony be taken by deposi- tion. And where parties taking a deposition failed to carry out a stipulation as to the swearing of a witness in a manner not required by law, it was held not to be ground for suppressing the deposi- tion 95 . 93. Cowles v. Buckman, 6 la. 161. 94. Trammell Co. v. Mount, 68 Tex. 210; 4 S. W. 377; 2 A. S. R. 479. 95. Knapp v. Am. Shoe Co., 63 Kans. 698; 66 Pac. 996. 410 THE LAW OF WAIVER. B. DEPOSITIONS: Sec. 417. Statutes dif- fering in minutia as to the taking of depositions of witnesses exist in the various states, and in the es- sential requirements these statutes are similar. Every deposition must be taken upon some sort of notice to the opposite party, and unless such notice be given, the deposition may be suppressed upon proper application. But after defective or insuffi- cient notice, a party waives the defects by appear- ing and participating in the taking of the deposi- tion 96 . And if he files cross-interrogatories and participates in the taking of the deposition, he waives any objection to the commission under which it was taken 97 . As a general proposition, appearing and taking part in the examination of the witness is a waiver of all formal objections that might be remedied by amendment or re-taking of the deposi- tion 98 . Thus, preliminary proof that the witness resided out of the county where the cause was be- ing tried was held waived where the party against whom the deposition was taken expressed himself as satisfied with a statement from opposing counsel as to the non-residence of the witness 00 . And an objection that the certificate does not show that the deposition was taken before the one to whom the commission was issued, nor in the official capacity designated therein, is waived unless taken by mo- 96. Kelly v. Ning Tung Co., 2 Cal. App. 460 ; 84 Pac. 821. 97. Palatine Ins. Co. v. Merc. Co., 13 New Mex. 241; 82 Pac. 363. 98. Shutte v. Thompson, 15 Wall. 151. Waldron v. St. Paul. 33 Minn. 87 ; 22 N. W. 4. Quadras v. Webster, 11 La. Ann. 203. .Goodfellow v.. Landis, 36 Mo. 168. Jones v. Love, 9 Cal. 68. Hobart v. Jones, 5 Wash. 385; 31 Pac. 878. 99. Estate of Learned, 70 Cal. 140 ; 11 Pac. 587. CIVIL PRACTICE. 411 tion to suppress made prior to trial 100 . And if a motion to suppress be made, but no ruling thereon had, it will be presumed that the objection was waived 1 . Sec. 418. It is the further general rule that ob- jections to the manner and form of taking a depo- sition must be made at the time it is taken or they will be held waived. Such objections cannot be made for the first time at the trial 2 . And it is the same if objection be made to improper questions 3 . But objections going to the competency and rele- vancy of the evidence, if not known and not dis- closed by the deposition, may generally be made at the trial 4 . C. COMPETENCY: Sec. 419. Sometimes it appears before the examination-in-chief that a wit- ness is incompetent to testify in the particular case. In such event the party entitled to object to such witness must make his objection promptly or he will be deemed to have waived it ; for in this connection, as in all other cases, it is the rule that an objection 100. Sugar Pine Co. v. Garrett, 28 Oreg. 168 ; 42 Pac. 129. Murray v. Larabie, 8 Mont. 208 ; 19 Pac. 574. 1. Garvin v. Luttrell, 10 Humph. 16 (Tenn.) Faut v. Miller, 17 Gratt. 187 (Va.) Hanks v. Van Garder, 59 la. 179 ; 13 N. W. 103. McGinnis v. Gabe, 78 Ind. 457. 2. Oliver v. Oregon Sugar Co., 45 Oreg. 77; 76 Pac. 1086. Inter-Nat. Ry. Co. v. Prince, 77 Tex. 560 ; 19 A. S. R. 795. Bent Otero Co. v. Whitehead, 25 Colo. 354 ; 54 Pac. 1023 ; Tl A. S. R. 140. Holman v. Bachus, 73 Mo. 49. Uhle v. Burnham, 44 Fed. 729. Akers v. Demon d, 103 Mass. 318. Bell v. Jamison, 102 Mo. 71 ; 14 S. W. 714. 3. Ala. Nat. Bank v. Rivers, 116 Ala. 1; 22 So. 580; 67 A. S, R. 95. 4. Leavitt v. Baker, 82 Me. 26 ; 19 Atl. 86. Myers v. Murphy, 60 Md. 282. Tays v. Carr. 37 Kans. 141 : 14 Pac. 456. 412 THE LAW OF WAIVER. should be made at the first opportunity, a ruling ob- tained, and an exception properly saved, or the pro- ceedings will conclusively be presumed to have been satisfactory to all parties 5 . But it perhaps more frequently occurs that the incompetency of the wit- ness does not become apparent until after his ex- amination has been proceeded with. In cases of this kind, of course a party cannot object until he knows of his right to do so, but when it comes to his knowledge he must act promptly in presenting his objections or he will be held to have foregone his right to question the competency of the witness 6 . A party calling a witness in support of his own case cannot object to his competency 7 , and it is said, also, that he waives the right to object to the credi- bility of the witness 8 . Such waiver, once made, is good for the entire trial and cannot be revoked 9 . But a party is only required to make his objection at the proper time and to save an exception to the court's ruling. His right to later insist upon the objection is not waived by proceeding with the cross-examination of the witness nor by introducing evidence to contradict the testimony 10 . D. SELF-CRIMINATION: Sec. 420. The federal constitution and the constitutions of most of the states provide that no person can be com- 5. See: Lewis v. Morse, 20 Conn. 211. Groshom v. Thomas, 20 Md. 234. Patterson v. Wallace, 44 Pa. St. 88. Stuart v. Lake, 33 Me. 87. Weidenhoft v. Prim. 16 Wyo. 340; 94 Pac. 458. 6. Seip v. Torch, 52 Pa. St. 210. Stockton v. Demuth, 7 Watts 39 ; 32 A. D. 735. T. Stockton v. Demuth, supra. 8. Mattloe v. Allen, 33 Barb. 546. 9. Beall v. Lynn, 6 Harr. & Johns. 336 (Md.) 10. Boylan v. Meeker, 4 Dutch. 274 (N. J.) Carpenter v. Glnder, 1 Wis. 243 CIVIL PRACTICE. 413 pelled, as a witness, to answer any question if the answer would tend to expose Mm to a criminal charge or any kind of punishment. It may be noted that the answer may be refused if it would tend to expose the witness to a criminal prosecution, the rule not being confined to matters which directly incriminate him. And a court ought never to com- pel a witness to give an answer which discloses a fact that would form a necessary and essential part of a crime which is punishable by law 11 . Whether the privilege extends to protecting a witness from answers that would disgrace him is a matter upon which there is still some divergence of opinion. But the weight of authority is that if the answer would have a tendency to disgrace him, and the proposed testimony be of materiality to the case, he may be required to answer, but that he may invoke the ben- efit of the privilege if the answer can have no effect on the case 12 . And we think the holding of most courts is to the same effect where the answer not only has a tendency, but is sure to disgrace the wit- ness 13 ; although an opposite rule is adhered to by some courts 14 . Sec. 421. But the question what the witness is privileged from, what will criminate him, who de- termines the character of the answer, and questions of like character are not matters which we are to discuss extensively. It is our purpose to consider the ways and instances in which a witness by his 11. 1 Burr's Trial, 244, per Chief Justice Marshall. Counselman v. Hitchcock, 142 U. S. 547. 12. Brown v. Walker, 161 U. S. 591 ; and 70 Fed. 46. 13. Jennings v. Prentice, 39 Mich. 421. People v. Rector, 19 Wend. 569. Nioline Co. v. Preston, 39 111. App. 358. 14. U. S. v. James, 60 Fed. 257. 414 THE LAW OF WAIVER. own conduct deprives himself of the protection af- forded by the privilege. And to begin with, it is well to note that this privilege of refusing to an- swer questions of a nature incriminating is one that is merely personal to the witness and he alone can claim its protection. The rules regulating the waiver of this privilege are the same whether the witness be testifying in a civil action or in a crim- inal prosecution, except as to the defendant him- self in the latter case. (1) TIME TO CLAIM PEIVILEGE : Sec. 422. Though there is some conflict of authority, the better doctrine is that a witness must claim the privilege of his exemption from answering at the threshold of the examination; it being said that he cannot wait and answer a part and then refuse to answer other questions legitimate to a cross-exam- ination. If he voluntarily states a part of the testimony, he waives his right and cannot later stand on his privilege 15 . And while there is author- ity supporting the doctrine that a witness may in his direct examination stop at any point he may see fit and claim his privilege, after which he cannot be cross-examined touching any point not men- tioned in the direct examination 16 , still, whether or not it contravenes the general rules regulating cross-examinations, the trend and holding of mod- ern authorities support the rule that a witness who, IS. Ex Parte, Park, 37 Tex. Cr. R. 590; 66 A. S. R. 835, citing: Rapalje, Witnesses, Sec. 269. Wharton's Grim. Evidence, Sec. 470. State v. Blake, 25 Me. 350. Com. v. Price, 10 Gray 472; 71 A. D. 668. People v. Freshour, 55 Cal. 375. Connors v. People. 50 N. Y. 240. State v. K., 4 N. H. 562. 1. Cooley's Const. Llm. 6th Ed. 384. CIVIL PRACTICE. 415 in his direct examination, voluntarily, or without objection opens up an account of a transaction, will, on cross-examination, be compelled to complete the narrative; and that he will not be allowed to state a fact and afterwards refuse to give the details 17 . In fact, the time in which this privilege may be claimed is one of the distinguishing rights between an ordinary witness and a defendant in a criminal prosecution who takes the stand in his own behalf; for the former may testify in the case and then re- fuse to answer an incriminating question at the time it is asked, but the latter, by the mere fact of taking the stand, produces a complete waiver of the privilege so far as it relates to facts relevant to the case 18 . (2) PBIVILEGE MUST BE CLAIMED :- Sec. 423. The protection afforded by the privilege extended to witnesses to refuse to answer questions of an incriminating character is not self-operative. It is not a matter that concerns any but the witness himself, or, in other words, it is entirely personal to him. If he would avail himself of its benefits, he must claim them properly, for the rule is general that unless he claim the privilege in time he will be 17. Rapalje on Law of Witnesses, Sec. 443. Chamberlain v. Willson, 12 Vt. 491. Alderman v. People, 4 Mich. 414. State v. Nichols, 29 Minn. 357; 13 N. W. 153. Este v. Wilshire, 44 Oh. St. 636 ; 10 N. E. 677. Com. v. Pratt, 126 Mass. 462. 18. State v. Kent, 5 N. Dak. 516; 67 N. W. 1052. Coburn v. O'Dell, 30 N. H. 540. State v. Duncan, 7 Wash. 336; 35 Pac. 117; 38 A. S. R. 888. State v. Murphy, 45 La. Ann. 958 ; 13 So. 229. State v. Clinton, 67 Mo. 380 ; 29 A. R. 506. State v. Allen, 107 N. Car. 805 ; 11 S. E. 1016. State v. Fay, 43 la. 651. Tbomas v. State, 103 Ind. 419 ; 2 N. E. 808. 416 THE LAW OF WAIVER. deemed to have waived it and exposed himself to a complete examination and cross-examination con- cerning the criminating matters. And while the privilege is one wholly personal to the witness, and one with which neither party has anything to do, it has been said that the rnle does not require that the witness should in person address the court and claim the privilege 19 , and that if the court under- stands that the witness claims the privilege, it is immaterial whether the claim be made in person or by counsel 20 . But the better rule is adverse to these holdings and supported by most authorities, and under it the witness must claim his privilege in person and must state under oath that the answer to the proposed question will tend to incriminate him 21 . The reason for the last-named rule is that if the witness is not required to personally claim the privilege under oath, there is no admission which tends to discredit him, and the real benefit to be derived by the party examining him from such a discrediting admission is very largely lost. (3) EXTENT OF WAIVER: Sec. 424. Some question has arisen as to how far the waiver by a witness of the privilege of refusing to testify shall be effective. It seems well settled that where a witness is connected with several distinct trans- is. People v. Brown, 72 N. T. B71 ; 28 A, R. 183, a case of a defend- ant as a witness for himself. 20. Clifton v. Granger, 86 la. 573 ; 53 N. W. 316. 21. Wharton, Evidence, Sec. 535. State v. Kent, 5 N. I>ak. 516 ; 67 N. W. 1052. Roddy v. Flnnegan, 43 Md. 490. White v. State, 52 Miss. 216. People v. Relnhart, 39 Cal. 449. State v. Wentworth, 65 Me. 234; 20 A. R. 688. State v. Butler, 47 S. Car. 25 ; 24 S. E. 991. Bradford v. People, 22 Colo. 157; 43 Pac. 1018. Burk v. Putnam, 113 la. 232; 84 N. W. 1053; 86 A. S. R. 37*. CIVIL PRACTICE. 417 actions which tend to incriminate him, all of which are material to the issues in the case, he does not waive his privilege of refusing to testify as to some of the incriminating transaction by consenting to testify as to others. But he waives his privilege as to such transaction in so far as the inquiry as to them is within the proper limits of cross-examina- tion 22 . A specific exemplification of the rule is found in a case where a witness in his deposition testified in chief to the execution of certain notes, and it was held that he did not thereby waive his privilege of refusing to answer on cross-examina- tion whether the notes were respectively in the same condition at the time he was testifying as they were when signed and delivered, and it was held error in such case to strike out the deposition on the ground that the witness had by so answering in chief waived his privilege 23 . Sec. 425. There is authority for the proposi- tion that if a witness voluntarily and freely testify before a grand jury, that he waives his privilege and may be required to testify fully at the trial 24 . But the rule is not well supported either by author- ity or reason ; for the grand jury investigations are entirely separate and disconnected and have noth- ing to do with the court as far as the witness is concerned, since his testimony could not be consid- ered as a continuous statement 25 . And the same is 22. Evans v. O'Connor, 174 Mass. 287; 54 N. E. 557; 75 A. S. R 316. Low v. Mitchell, 18 Me. 372. 28. Lombard v. Mayberry, 24 Neb. 674; 40 N. W. 271 ; 8 A. S. R. 234. 24. fitate v. Van Winkle, 80 la. 15 ; 45 N. W. 388. 26. Temple v. Commonwealth, 75 Va. 892. People v. Lauder, 82 Mich. 109; 46 N. W. 958. 418 THE LAW OF WAIVER. true if he first testify at a coroner's inquest 26 , or if he waives his privilege at one trial and claims it at a second trial of the same case 27 . SUB-DIVISION 2. TRIAL PRACTICE. 1. IN GENERAL: Sec. 426. In the trial of all cases before courts of justice, either with or without the intervention of a jury, it is necessary, in order for a party to have errors alleged by him to have been committed by the trial court reviewed on appeal, that he should have objected to the mat- ter alleged as error and excepted to the ruling of the court. The objection is the presentment of a point upon which a ruling is asked, and the excep- tion is an objection registered against the ruling of the court. Without an exception, the objection is unavailing in the appellate court. And as the two are so closely related in their functions, and as the rules governing them apply whether the trial be of a civil or criminal action, the treatment of the two in the succeeding sections will necessarily be inter- woven. Sec. 427. It is elementary that the point to which a party may wish to object must be raised at the trial or in the proceedings in the court below, or it cannot be taken advantage of in the appellate court 28 . Or, otherwise said in one instance, if the 26. Cullen v. Commonwealth, 24 Gratt. (Va.) 624. 27. Emery v. State, 101 Wls. 627 ; 78 N. W. 145. Georgia Ry. Co. v. Lybrend, 99 Ga. 421; 27 S. E. 794. 28. Hershey v. Institute, 15 Ark. 128. Spear v. Lomax, 42 Ala. 576. New Orleans v. Congregation, 15 La. Ann. 389. Scully v. Book, 3 Wash. 182; 28 Pac. 556. Dimmey v. Wheeling Ry. Co., 27 W. Va. 32 ; 35 A. R. 292. Bunks v. Chapman, 11 Ky. L. R. 260. Benepe v. Wash, 38 Kans. 407; 16 Pac. 950. Laber v. Cooper, 7 Wall. 565 ; 19 L. Ed. 151. CIVIL PRACTICE. 419 objection be to the introduction of evidence, the proper time to object is when it becomes apparent that error will be committed by receiving the evi- dence, as when it is offered 29 , or, when a question is asked which is improper or calls for an improper answer 30 ; and that an exception must be taken at the time to the ruling of the court 31 . Some states have statutory provisions regulating the mode and time of making objections and taking exceptions, but the rules are practically the same as in those states where no statutory provision exists. And the same principles obtain whatever be the matter objected to, the rule being that a party must avail himself of his rights at the earliest opportunity or they will be deemed waived. 2. OBJECTIONS TO EVIDENCE: A. ADMISSION- (1) TIME TO OBJECT: Sec. 428. It is a rule of universal application, embracing practically every conceivable objection that could be made to evidence, that, in order to obtain any advantage of an error committed by the trial court, an objection must be made at the time the evidence is offered or it will be held waived ; in support of which rule, the 29. Perrot v. Shearer, 17 Mich. 48. Sharon v. Minneck, 6 Nev. 377. McKay v. Lane, 5 Fla. 268. Crump v. Starke, 23 Ark. 131. Shain v. Sullivan, 106 Cal. 208 ; 39 Pac. 606. Thomson v. Wilson, 26 la. 120. 30. Storms v. Lemon, 7 Ind. App. 435 ; 34 N. E. 644. Blake v. Broughton, 107 N. Car. 220; 12 S. E. 127. Duer v. Allen, 96 la. 36 ; 64 N. W. 682. 31. Laird v. Upton, 8 N. Mex. 409 ; 45 Pac. 1010. Lester v. Georgia Co., 90 Ga. 802 ; 17 S. E. 113. Missouri v. Hope, 100 Mo. 347; 13 S. W. 490; 8 L. R. A. 608. Hanna v. Maas, 122 U. S. 24 ; 7 Sup. Ct. R. 1055 ; 30 L. Ed. 1117. Williams v. Thomas, 3 N. M.-326; 9 Pac. 356. 420 THE LAW OF WAIVER. adjudicated cases are numerically like unto the sands of the sea. And the reason upon which the rule is based is that if the alleged error be called to the attention of the trial court, an opportunity will thus be given for its correction, the expense of an appeal, and perhaps the annoyance of a second trial averted. Therefore, the objection will be too late if made for the first time after the cause has gone to the jury 32 , or after argument 33 , or after verdict 84 , or on a mo- tion for a new trial 35 , or on appeal 36 , and in either of such cases it is deemed waivecl. Sec. 429. Thus, if parol evidence be offered in lieu of that required by law to be in writing, the er- ror in the admission of such evidence is waived un- less objected to at the time of the offer 37 . And the same result follows where the evidence introduced is secondary 38 , or documentary with defects as to form which would render it inadmissible 39 , or parol introduced to vary the terms of a written instru- 32. Hummel v. State, 17 Oh. St. 628. 38. Farmers Bank v. Greene, 43 U. S. App. 446 ; 74 Fed. 439 ; 20 C. C. A. 500. 34. Arons v. Smlt, 173 Pa. St. 630; 34 Atl. 234. Crump v. Starke, 23 Ark. 131. Barton v. Gray, 57 Mich. 622 ; 24 N. W. 638. 35. Cook v. L/igon, 54 Miss. 368. Feidler v. Motz, 42 Kana 519; 22 Pac. 561. State v. Peak, 85 Mo. 190. Holten v. Lake Co., 55 Ind. 194. 36. West. Union v. Powell, 94 Va. 268; 26 S. E. 828. Vietti v. Nesbitt, 22 Nev. 390 ; 41 Pac. 151. Coleman v. Davis, 13 Colo. 98 ; 21 Pac. 1018. McLaughlin v. Wheeler, 1 S. Dak. 197 ; 47 N. W. 816. Dunham v. Holloway, 3 Okla. 244 ; 41 Pac. 140. Illstad v. Anderson, 2 N. Dak. 167 ; 49 N. W. 659. Button v. Snokomish, 11 Wash. 24 ; 39 Pac. 273. Paine v. Trask, 5 U. S. App. 283 ; 56 Fed. 233 ; 5 C. C. A. 497. 87. Brown v. Barnwell Co., 46 S. Car. 415 ; 24 S. B. 191. keeper v. Paschal, 70 Mo. App. 117. 38. West. Union v. Cline, 8 Ind. App. 364 ; 35 N. E. 564. 39. Western v. Flanagan, 120 Mo. 61 ; 26 S. W. 531. Wells Fargo v. Davis, 105 N. T. 670; 12 N. E. 42. CIVIL PRACTICE. 421 merit 40 , or if a written instrument be introduced without proof of the signatures of the parties bound thereon 41 , or if the evidence given be entirely out- side of the issues raised by the pleadings 42 , or be subject to the objection that the proof is a variance from the pleadings 43 , or if proper preliminary proof has not been made 44 . Sec. 430. But it has been held that the objection that evidence incompetent has been admitted is not waived by neglect to make it when the evidence was introduced, and that it may be made at any time 45 . The ruling, however, is contrary to an almost un- broken line of authority which holds to the proposi- tion dictated by reason, that a party should not be allowed to take his chances on incompetent evi- dence's being favorable to him and when it runs against him to have his belated objection given rec- ognition 46 . But the law never requires of a party 40. Tebbs v. Weatherwax, 23 Cal. 58. 41. Perrott v. Shearer, 17 Mich. 48. Knoll v. Kiessling, 23 Oreg. 8 ; 35 Pac. 248. McKay v. Lane, 5 Fla. 268. 42. Boston Co. v. O'Reilly, 158 U. S. 334; 15 Sup. Ct. R. 830; 39 L. Ed. 1006. Blanchard v. Cook, 147 Mass. 215; 17 N. E. 313. Brady v. Nally, 151 N. Y. 258 ; 45 N. E. 547. 43. Colo. Inv. Co. v. Rees, 21 Colo. 435 ; 42 Pac. 42. Stockton, etc. v. Glens Palls Co., 121 Cal. 167 ; 53 Pac. 565. Bertha Co. v. Martin, 93 Va. 791 ; 22 S. E. 869. 44. Cox v. Gerkin, 38 111. App. 340. 45. Day v. Crawford, 13 Ga. 508. (See later cases same state below). 46. Maxwell v. Hannibal Ry., 85 Mo. 95. O'Connell v. Hotel Co., 90 Cal. 515 ; 27 Pac. 373. McCoy v. Wilson, 8 Colo. 335. Jackson v. State, 88 Ga. 784 ; 15 S. E. 677. Kinney v. Ry. Co., 34 N. J. L. 517. De Garca v. Galvan, 55 Tex. 53. Briesenmeister v. Lodge, 81 Mich. 525 ; 45 N. W. 977. Pokrok Co. v. Zizkovsky, 42 Neb. 64 ; 60 N. W. 358. Zabel v. Nyenhuis, 83 la. 756; 49 N. W. 999. Murray v. Ry. Co., 3 N. Mex. 337 ; 9 Pac. 369. 422 THE LAW OF WAIVEB. that he do an unreasonable or an impossible thing, and if at the time evidence is offered or introduced a party against whom it operates is unaware of its inadmissibility and could not with reasonable dili- gence ascertain it, he will be permitted to object at the first opportunity offered after discovery of its inadmissibility, which objection should be in the form of a motion to strike out 47 . And it has been said, as a qualification of the general rule, that if the objectionable features of evidence could not un- der any circumstances have been obviated in the court below, objection may for the first time be made in the appellate court 48 . (2) SPECIFYING EVIDENCE AND GKOUND OF OBJECTION- (a) IN GENERAL: Sec. 431. Objections to the introduction of evidence must not only be made at the proper time, but they must present to the court the substance of the complaint showing the in- admissibility of the offered evidence, so that the court may be fully advised of the claims of either party and thus be better able to avoid error in rul- ing. The objection must embrace all the reason the complaining party desires to urge for excluding the evidence, for it is the general rule, subject to a few exceptions, that if an objection specify particular reasons for excluding evidence, it will be considered only upon those grounds and all others will be 47. Sharon v. Nimrock, 6 Nev. 378. Dyson v. Baker, 54 Miss. 24. 48. People v. Tee Funk Din, 106 Cal. 163 ; 39 Pac. 530. Hough ton v. Jones, 1 Wall. 702 (U. S.) CIVIL PRACTICE. 423 treated as waived 49 . A contrary rule would create confusion in the trial of cases. For, as has been said, if parties were not required to specify the grounds of their objections, such confusion might arise that many cases would practically never end. "The ef- fect of it would be to compel one party to fight in the dark, not knowing when his opponent intended to strike, while the other would be free to choose his weapons and the time and place to use them. Such things may do in love or war, when all things are said to be fair, but life is too short to transact busi- ness on such a system in courts of justice." 50 . If the party objecting will not specify the particulars rendering the evidence inadmissible, the court is not bound to speculate as to what counsel might have intended, for, unlike darkness, a general objection will not cover a multitude of errors 51 . 49. Washington v. State, 106 Ala. 58; 17 So. 546. Walker v. State, 97 Ga. 197 ; 22 S. E. 401. Bell v. Sheridan, 21 D. C. 370. Little v. People, 157 111. 153 ; 42 S. E. 389. Davis v. Hopkins, 18 Colo. 153; 32 Pac. 70. Morris v. Henderson, 37 Miss. 492. Sullivan v. Richardson, 33 Fla. 1 ; 14 So. 692. Bailey v. Ry. Co., 3 S. Dak. 531; 54 N. W. 696 ; 19 L. R. A. 653. Evanston v. Gunn, 99 U. S. 660 ; 25 L,. Ed. 306. Violet v. Rose, 39 Neb. 660; 58 N. W. 216. Rosina v. Trowbridge, 20 Nev. 105 ; 17 Pac. 751. Burnside v. Ry. Co., 47 N. H. 554. Crane v. State, 94 Tenn. 86; 28 S. W. 317. Bournan v. Eppinger, 1 N. Dak. 21; 44 N. W. 1000. 50. Rush v. French, 1 Ariz. 123 ; 25 Pac. 816. 51. Heasllt v. Stratlin, 54 Ark. 185 ; 15 S. W. 461. Alexander v. Thompson, 42 Minn. 498; 44 N. W. 534. Howard v. Howard, 52 Kans. 469 ; 34 Pac. 1114. States v. Chambers, 87 la. 1 ; 53 N. W. 1090. Chandler v. Beal, 132 Ind. 596 ; 32 N. W. 597. Davis v. Mills, 163 Mass. 481 ; 40 N. E. 852. Holmes v. Roper, 141 N. T. 64 : 36 N. E. 180. Fidler v. Hershey, 90 Pa. St. 363. Arnold v. State, 5 Wyo. 439 ; 40 Pac. 967. Turnbull v. Richardson, 69 Mich. 400; 37 N. W. 499. 424 THE LAW OF WAIVER. Sec. 432. A general objection in the trial court will not permit the urging of a special ground in the appellate court, nor can a new ground be substituted in the higher court for the one presented below 52 . And a general objection will be ineffective for any purpose if a part of the evidence be admissible even though the other part be inadmissible 53 . It is im- material for what purpose the evidence is admis- sible 54 , although it has been held differently where the evidence had no bearing whatever on the is- sues 55 . But the exceptions to the rule are not many, for it is founded in reason, and in consonance with good sense requires a party objecting to specify the matters of which he complains and not to say, as counsel in one case did, that the objection is on "all grounds ever known or heard of" 56 . For as much as any other purpose, the objection is to give notice to the opposing party of the error in order that he may correct it if it is objected that the question is leading, that the form may be changed; if that the evidence is irrelevant, the relevancy may be shown ; if that it is incompetent, that the incompetency may be removed; if that it is immaterial, that the ma- teriality may be established; if to the order of in- troduction, it may be withdrawn and offered at another time 57 . 52. Wllley v. Portsmouth, 64 N. H. 219; 9 Atl. 220. Bright v. Ecker, 9 S. Dak. 449 ; 69 N. W. 824. 53. Mllligan v. Furniture Co., Ill Mioh. 629 ; 70 N. W. 133. 54. Stringer v. Frost, 116 Ind. 447; 19 N. E. 331; 9 A. S. R. 875; 2 L. B. A. 614. Three States Co. v. Rogers, 145 Mo. 445 ; 46 S. W. 1079. 55. First Nat. Bank v. Carson, 30 Neb. 104 ; 46 N. W. 276. 56. Johnston v. Clements, 25 Kans. 376. 67. Rush v. French, 1 Ariz. 124 ; 25 Pac. 816. See, also: Helena v. Albertose, 8 Mont. 449; 20 Pac. 817. Johnson v. Okerstrom, 70 Minn. 303 ; 73 N. W. 147. Smith v. Hanie, 74 Ga. 324. Masonic Soo. v. Lackland, 97 Mo. 137; 10 S. W. 895. CIVIL PRACTICE. 425 (b) INCOMPETENCY: Sec. 433. However far the objection that evidence is incompetent may be effective, it is well settled that it cannot cover any other grounds for the exclusion of the evidence objected to, and, therefore, such other grounds will be considered waived. Thus, such objection will not raise the question of the competency of the witness to testify 58 , nor that parol evidence was admitted to vary the terms of a written instrument 59 , nor that secondary evidence was admitted 60 , nor that a proper foundation for impeachment was not laid 61 , nor that there was a variance between the pleading and the proof 62 . In all cases the objection should not stop with declaring the evidence incompetent, but in or- der to be of any avail it must state in what manner it is incompetent and what facts constitute the in- competency 63 . (c) INCOMPETENT, IEEELEVANT AND IMMATERIAL: Sec. 434. The objection to evi- dence as being "incompetent, irrelevant and im- material" is so generally heard in trials, whether civil or criminal, to the court or a jury, that it has 58. Young v. Ry. Co., 52 Mo. App. 530. 69. John Hutchinson Co. v. Pinch, 107 Mich. 15; 64 N. W. 729; 86 N. W. 340. 60. Kenosha Co. v. Sheet, 82 la. 640 ; 48 N. W. 933. Walser v. Wear, 141 Mo. 443; 42 S. W. 928. Eversdon v. Mayhew, 85 Cal. 1; 21 Pac. 431. 61. Frankel v. Wolf, 7 Misc. Rep. 190 (N. T.). 62. Keigher v. &t Paiil, 73 Minn. 21 ; 75 N. W. 732. Burlington Co. v. Miller, 19 U. S. App. 588 ; 60 Fed. 254 ; 8 C. C. A. 612. White v. Craft, 91 Ala. 139 ; 8 So. 420. Le Mesnager v. Hamilton, 101 Cal. 532; 35 Pac. 1094. 63. State v. Eisenhour, 132 Mo. 140 ; 33 S. W. 785. Benson v. State, 119 Ind. 488 ; 21 N. E. 1109. Jones v. Inness, 32 Kans. 177 ; 4 Pac. 95. Gladstone Bank v. Keating, 94 Mich. 429; 53 N. W. 1110. Bagley v. Lodge, 31 111. App. 618. 426 THE LAW OF WAIVER. come to be regarded by the layman as a part of tae stock-in-trade of every lawyer. And it would be thought, from simply listening to many trials, that the lawyer may so regard it himself. But a review of the authorities in which this blanket objection has been considered will be convincing that it has not the efficiency as a healing potion that a majority of those practicing the profession suppose it to have. This will become apparent by remembering the rule hereinbefore adverted to that the right to object to the admission of evidence is waived if an objection interposed fail to specify the grounds ren- dering it inadmissible, to which rule nearly all courts give strict adherence. Many lawyers, how- ever and it may be truer of the young than of the old feel it incumbent upon them to make some ob- jection when evidence detrimental to their clients is offered, and knowing no other at all applicable, fall back upon the proposition that it is incompe- tent, irrelevant and immaterial, hoping that when the smoke of battle has cleared away they may be able to see more clearly wherein the incompetency, irrelevancy or immateriality lay embedded. But appellate courts do not look favorably upon at- tempts to cover every conceivable error by such generalities. For they say that a suitor has the right to be fairly appraised by the language of the objection just what point is made against his evi- dence to the end that he may then and there, if pos- sible, save himself from the consequences of er- ror 64 , and courts are entitled to know exactly what 64. Kolka v. Jones, 6 N. Dak. 461; 71 N. W. 558; 66 A. S. R. 615, citing : Springer Co. v. Faulk, 8 C. C. A. 224 ; 59 Fed. 707. Warren v. Warren. 93 Va. 73 ; 24 S. E. 913. Hutchinson Co. v. Pinch, 107 Mich. 12; 64 N. W. 729; 66 N. W. 340. CIVIL PEACTICE. 427 complaint is made so that they may intelligently rule upon the objection 65 . Sec. 435. So, where there is a general objec- tion to evidence a part of which is admissible and a part is not, the objection is not sufficient to ex- clude any 66 , for the rules of evidence under which objections are permitted to be made were not de- signed for the purpose of allowing them to be made grab-nets of to catch anything that might get fastened thereon. Counsel, who are presumed to have studied their cases, ought to be able to state the particular objections, and if none are stated, it is fair to assume that none exist, since an objection that cannot be particularly stated is not worth the making. The rule is a reasonable one, fair to the court and not burdensome to the parties 67 . Sec. 436. So, the rule being that objection to the introduction of evidence on one ground is a waiver of any right to object on other grounds, and that a general objection is a waiver of special grounds, it necessarily follows that evidence to which a general objection is interposed will not be excluded on account of such general objection if it be competent for any purpose 68 . As an illustration of this rule, plaintiffs brought an action against a Bright v. Ecker, 9 S. Dak. 449 ; 69 N. W. 824. Levine v. Lancashire Co., 66 Minn. 138; 68 N. W. 855. Hawver o. Bell, 141 N. T. 140; 36 N. B. 6. Ladd v. Sears, 9 Oreg. 244. Taylor v. Wendling, 66 la. 562; 24 N. W. 40. 66. Hoard v. Little, 7 Mich. 468. Miller v. State, 12 Lea 225 (Tenn.). 66. Gofer v. Scroggins, 98 Ala. 342 ; 39 A. S. R. 54. St. Louis Ry. Co. v. Hendricks, 48 Ark. 177; 3 A. S. R. 220. 67. Ohio Ry. Co. v. Walker, 113 Ind. 196; 15 N. E. 234; 3 A. S. K. 638. Milligan v. Ry. Co., Ill Mich. 629; 70 N. W. 133. New York Co. v. Gallaher ,79 Tex. 685 ; 15 S. W. 694. *8. Miss. Mills v. Smith, 69 Miss. 299; 30 A. S. R. 546. 428 THE LAW OF WAIVEE. railroad company for damages from an excavation on plaintiff's land by defendant. For the purpose of ascertaining the amount of the damage, witnesses were asked by plaintiffs, "What effect did the cut have upon the value of the property?" and upon their replying that its effect was to depreciate the value of the property, they were then asked "To what extent", and in reply stated the amount. These questions were objected to by the defendant on the ground that they were incompetent, irrelevant and immaterial; and on appeal of the case it was urged that the opinions of the witnesses should have been limited to the market value of the property before and after the excavation, and that the jury should have drawn its conclusion of the amount of damage from such evidence rather than from the opinions of the witnesses. But the court said that if this special objection had been made at the trial the plaintiffs could have asked the questions in such form as to obviate the objection; but it was further said that it is well settled that, unless the evidence is inad- missible for any purpose, a party is not at liberty under a general objection afterwards to urge a special objection 69 . Sec. 437. Since a general objection waives special grounds of complaint as to offered evidence, an objection thereto as incompetent, irrelevant and immaterial waives the question of the competency of a witness 70 , that the evidence was not the best 9. Eachus v. Los Angeles Ry. Co., 103 Cal. 614; 37 Pac. 750; 42 A, S. R. 149. Crocker v. Carpenter, 98 Cal. 418; 33 Pac. 271. See, also: Bundy v. Cunningham, 107 Ind. 360; 8 N. E. 174. Wilson v. Reeves, 70 Mo. App. 30. 70. Ball v. Keokuk Ry., 74 la. 132; 37 N. W. 110. CIVIL PRACTICE. 429 evidence 71 , that no proper foundation was laid 72 , that no preliminary proof of the execution and de- livery of a deed was made 73 , that the publication of a city ordinance was not established 74 , that a city ordinance was invalid 75 , that a question is leading 76 , that an answer is not responsive 77 or that evidence is hearsay 78 . (d) EXCEPTIONS TO RULE: Sec. 438. The rules announced in this division are general in their application, but not without exceptions. The requirement that the objection shall point out the evidence and the particular grounds rendering it in- admissible, and holding all grounds waived if not specified, is for the purpose of calling to the atten- tion of the court and the opposite party possible er- rors in order that they may be corrected or obvi- ated. But the cases in which this object could not possibly be attained constitute the exceptions to the rule, and the holding of the courts in this connection is that if the defect could not be cured by a special objection, a general objection, or the total want ol an objection, is no waiver of the defect in the evidence 71. Rich v. Trustees, 158 111. 242; 41 N. E. 924. Homestead Co. v. Buncombe, 51 la. 525 ; 1 N. W. 725. 8 Enc. PI. & Pr. 232 and cases cited. 72. Seventy-Day Assoc. v. Fisher, 95 Mich. 274 ; 54 N. W. 769. 73. Rupert v. Penner, 35 Neb. 587 ; 53 N. W. 598. Knoll v. Klessling, 23 Oreg. 8 ; 35 Pac. 248. Calhoun v. Hannan, 87 Ala. 277. Thompson v. Ellenz, 58 Minn. 301; 59 N. W. 1023. 74. Klotz v. Wlnona Ry. Co., 68 Minn. 341 ; 71 N. W. 257. Chicago Ry. v. People, 120 111. 667; 12 N. E. 207. 76. Pittsburg Ry. v. Lyons, 159 111. 576; 43 N. E. 377. 76. Tannish v. Tarbox, 57 Minn. 245 ; 59 N. W. 300. 77. O'Callaghan v. Bode, 84 Cal. 489 ; 24 Pac. 269. 78. Sherwood v. Sissa, 5 Nev. 349. Yeatman v. Erwin, 5 La. 265. 430 THE LAW OF WAIVER. and same may be taken advantage of at any time 79 . This is analogous to the rule that objections to a complaint for failure to state a cause of action are never waived, for the theory is that in the latter case no cause of action is alleged and in the former none is proved. (e) OBJECTIONS ABANDONED : Sec. 439. Even if a party has made a proper objection to the admission of evidence and duly excepted to the court's ruling, he is not yet over the shoals; for he may by his subsequent conduct waive his right to insist on his objection. Thus, if he leave to the dis- cretion of a witness the objection to the privileged character of the facts inquired about he waives the right to further object to such testimony as being privileged 80 . Or, if he introduce as a part of his case the same evidence objected to, he thereby waives his right to object 81 ; and such result has been held to have been produced by his bringing the same evidence out on cross-examination 82 , although such is doubtless not true if he cross-examine the 79. Nutwell v. Tongue, 22 Md. 419. Espalla v. Richard, 94 Ala. 159; 10 So. 137,. Dow v. Merrill, 65 N. H. 107 ; 18 Atl. 317. McCadden v. Lowenstein, 92 Tenn. 614; 22 S. W. 426. Snowden v. Coal Co., 16 Utah 366 ; 52 Pac. 599. Lothrop v. Roberts, 16 Colo. 250; 27 Pac. 698. Connor v. Black, 119 Mo. 126; 24 S. W. 184. Tozer v. N. T. Ry., 105 N. T. 659; 11 N. B. 846. Waller v. Leonard, 89 Tex. 507; 35 S. W. 1045. Hodges v. Hodges, 106 N. Car. 374; 11 S. E. 364. Bowman v. Eppinger, 1 N. Dak. 21 ; 44 N. W. 1000. Brumley v. Flint, 87 Cal. 471 ; 25 Pac. 683. State v. Soule, 14 Nev. 453. Greenleaf v. Ry. Co., 30 la. 301. SO. Scales v. Henderson, 44 S. Oar. 548; 22 S. E. 724. 81. Miles v. Chicage Ry., 76 Mo. App. 484. 82. Schroeder v. Michel, 89 Mo. 43; 11 6. W. 814. CIVIL PRACTICE. 431 same witness upon the evidence to which he has properly objected 83 . B. VAEIANCE: Sec. 440. Where there is a variance between the pleading and the proof, such variance is fatal to a recovery. But it is not so unless properly taken advantage of by the party en- titled to insist upon it. To present the question of variance as one of law the evidence should be ob- jected to upon that ground at the time it is offered, or when the variance becomes apparent, the party should move to exclude the evidence, or in some other appropriate way the question should be raised so that the trial court may pass upon it ; and, to prop- erly raise the question in any of these modes, the variance should be distinctly pointed out so as to en- able the trial judge to pass upon it understandingly, and to enable the other party, if such a course should become necessary, to obviate the objection by an amendment 84 . Thus, it was held that in the appellate court an objection that there was a vari- ance between an instrument set out in the declara- tion and the one offered and admitted in evidence could not be made when objection on this ground was not made in the court below although objection was there made on other grounds 85 . In other words, objection to evidence on the ground of vari- ance between it and the pleading under which it was offered must specify the variance as ground of ob- 83. Kans. City Ry. Co. v. Crocker, 95 Ala. 412 ; 11 So. 262. Lyons v. Elevator Co., 26 App. DIv. 57 ; 49 N. Y. Supp. 610. 84. Llbby v. Scherman, 146 111. 540; 34 N. E. 801; 37 A. S. R. 191. 85. Richelieu Hotel Co. v. Military Co., 140 111. 248; 29 N. E. 1044- 33 A. S. R. 234. 432 THE LAW OF WATVER. jection 86 , must be made at the time it is offered or as soon as the variance becomes apparent 87 , cannot be made after verdict 88 , or on a motion for a new trial 89 , or on appeal 90 ; and unless made at the proper time and in the proper manner it will be held waived. The only exception to such rule is the case where the variance is so pronounced as to leave the allegations without supporting proof in their en- tire scope 91 . 3. EXCEPTIONS TO RULINGS OF THE COURT- A. IN GENERAL: Sec. 441. The object of an objection to any portion of the procedings be- fore courts is to present to the court the complaint a party has against those matters which, under the rules of procedure, he claims as prejudicial to his 86. Colfax Trust Co. v. So. Pac., 118 Gal. 648; 50 Pac. 776; 40 1* R. A. 78. Murchie v. Peck, 160 111. 175 ; 43 N. E. 356. Dano v. Sessions, 65 Vt. 79 ; 26 Atl. 585. Sup. Council v. Fidelity Co., 63 Fed. 48. 87. Strauss v. Young, 36 Md. 246. Cunningham v. Bostwick, 7 Colo. App. 169 ; 45 Pac. 151. Shmit v. Day, 27 Oreg. 110 ; 29 Pac. 870. Shenandoah Ry. v. Moose, 83 Va, 827; 3 S. B. 796. 88. Doyle v. Mulren, 7 Abb. Pr. (N. S.) 258. 89. Waidner v. Pauly, 141 111. 442 ; 30 N. E. 1025. 90. Wechselbery v. Bank, 64 Fed. 90 ; 26 L. R. A. 470. Broughel v. Telephone Co., 72 Conn. 617; 49 L. R. A. 404. Willey v. Elec. Lt Co., 168 Mass. 40; 46 N. E. 395; 37 L. R. A. 723. Fryer v. Breeze, 16 Colo. 323 ; 26 Pac. 817. Bond v. State, 56 Ark. 444; 19 S. W. 1062. Lary v. Lewis, 76 Ga. 46. Emerson v. Gainey, 26 Fla. 133 ; 27 So. 526. Challis v. Atchison, 45 Kans. 22 ; 25 Pac. 228. Smith v. Phelan, 40 Neb. 765; 59 N. W. 562. Bardwell v. Anderson, 13 Mont. 87 ; 32 Pac. 285. Ireland v. Drown, 61 N. H. 638. Cremer v. Miller, 56 Minn. 52 ; 57 N. W. 318. Rainsford v. Massengale, 35 Pac. 774. Shanks v. Whitney, 66 Vt. 405 ; 29 Atl. 367. $1. Roberta v. Graham, 6 Wall. 578 (U. S.). CIVIL PRACTICE. 433 rights. An exception is the follow-up complement of the objection, the registered intention of the party to rely upon his objection for the purpose of reviewing in the appellate court the ruling of the court below. And as an objection is necessary in order to bring the cause of complaint to the atten- tion of the trial court, so is the preserving of an ex- ception essential to procure a review of alleged er- ror in the ruling thereon. And if an exception be not taken to the ruling of the court, a party will be held to have abandoned or waived his objection and no error of the court in such ruling can be later complained of by him. Therefore, to constitute a complete record sufficient for the review of alleged errors, there must be an objection to such alleged erroneous procedure, a ruling thereon and an ex- ception to the ruling. Sec. 442. As objections must specify clearly the matters constituting the cause of complaint, so, exceptions, to be of any avail, must present distinct- ly and specifically the ruling objected to. A case ought not to be left in such condition after trial that the defeated party may hunt through the record and if he finds an unsuspected error, attach it to a general exception and thus obtain a reversal of the judgment upon a point that may never have been brought to the attention of the court below 92 . And they must be sufficiently specific that the court may know to what ruling the exceptions are intended to apply. Therefore, an exception must be taken to each ruling as made, as a single ex- ception will not be sufficient to cover several rul- ings. It is well established, also, that the exception t2. Sprlngfleld Ins. Co. v. Sea, 21 Well 162 (U. S.). 434 THE LAW OF WAIVER. must be taken at the time the ruling or decision is made, for a rule permitting it at any other time would be the cause of endless confusion in attempts to connect the exception to the proper ruling. So, it is held practically uniformly that erroneous rul- ings or decisions of the trial court are waived, even though properly objected to, unless an excep- tion is taken at the time and before any further steps are taken in the case 93 . The rule however, is modified through statutory provision in some states, and the procedure is governed thereby. It is not our object, however to cover extensively in these pages the subject of exceptions; our pur- pose is to show what may be waived and what will amount to a waiver in the taking or failing to take exceptions. B. TO EXCLUSION OF EVIDENCE : Sec. 443. The negligence or unskillfulness of counsel is responsible for losses to litigants more frequently through failure to properly conduct their trial so as to present errors to an appellate court for re- view than in any other phase of the proceeding. For such there is little excuse, for the rules are sim- ple and easily followed if proper attention be given 91. Laird v. Upton, 8 N. Mex. 409 ; 45 Pax:. 1010. Territory v. Baker, 4 N. Mex. 236; 13 Pac. 30. Allen v. Sallinger, 108 N. Car. 159; 12 S. E. 896. Lester v. Ga. Ry., 90 Ga. 802; 17 S. E. 113. Carelton v. Lewis, 67 Me. 77. Barney v. Scherling, 40 Miss. 320. Matsinger v. Fort, 118 Ind. 107; 20 N. E. 653. Meier v. Morgan, 82 Wis. 289; 52 N. W. 174. McAnaw v. Matthis, 129 Mo. 142; 31 S. W. 344. Bransford v. Karn, 87 Va. 242 ; 12 S. E. 404. Powers v. McCue, 48 Kans. 477; 29 Pac. 686. Franks v. State, 12 Oh. St. 1. Stedham v. Creighton, 28 S. Car. 609; 9 S. E. 465. United States v. Gary, 110 U. S. 51. Hanna v. Maas, 122 U. S. 24 ; 7 Sup. Ct. R. 1055; 30 L. Ed. 1117. CIVIL PKACTICB. 435 to details. Thus, the rule is of long standing and the object of general adherence by the courts that to reserve any ruling of the trial court in excluding evidence, a pertinent question must be asked the witness testifying, and, upon objection, a statement made to the court as to what the answer will be, and an exception at the time to the adverse ruling of the court 94 . And it is said that no rule of practice is better settled than that in taking exception to the decision of the court in overruling the offer of evidence or excluding a defense, the exception must state the ground upon which the offer was made 95 ; and that an exception to the exclusion of a question cannot be maintained where there is nothing to show what the answer would have been or what the exceptant expected to prove thereby 96 . Fur- thermore, the exception must be specific and di- rected to the exclusion of that evidence alone which is illegal for a general exception to the entire rul- ing of the trial court in granting a motion to exclude evidence in general including both legal and illegal evidence will not be sufficient to present any ques- tion for review 97 . The principle obtaining that the failure of the prejudiced party to except to the ruling of the trial court in excluding evidence is a waiver of any error in such ruling and debars such 94. Kern v. Bridwell, 119 Ind. 226 ; 21 N. B. 664 ; 12 A. S. R. 409. Chicago Ry. v. Champion, 9 Ind. App. 510; 36 N. E. 221; 37 N. E. 21; 71 A. S. R. 357. Ebner v. Mackey, 186 111. 297; 57 N. E. 834; 78 A. S. R. 280. Flach v. Gottschalk, 88 Md. 368 ; 41 Atl. 908 ; 71 A. S. R. 418. 95. Dale v. See, 51 N. J. I,. 378; 18 Atl. 306; 14 A. S. R. 688. 96. Shinners v. Locks & Canals, 154 Mass. 168 ; 28 N. E. 10 ; 12 L. R. A. 554 . $7. Henry v. Hall, 106 Ala. 84; 17 So. 187; 54 A. S. R. 22. 436 THE LAW OF WAIVER. party from relying thereon in the appellate court 98 , it is further the doctrine of the cases that the ex- ception must be taken at the time the evidence is excluded or it will be held waived". Thus, an ex- ception not taken until the term of court following the trial is too late 100 , and even where it is not taken until the case is submitted to the jury 1 the question cannot be reviewed on appeal. It is of no moment at what stage of the trial the excluded evidence was offered and rejected, the rule is the same, and an exclusion by refusal to re-open the case to admit it must be excepted to at the time or any error therein will be held waived 2 . C. TO ADMISSION OF EVIDENCE : Sec. 444. The principles of waiver applying to excep- tions to the decisions of the trial court excluding or rejecting evidence are by analogy applicable to cases wherein objections are made to the admis- sion of evidence. So, objections to the admission of evidence become abortive in so far as the review of errors thereon in the appellate court may be 98. Belk v. Meaghler, 104 U. S. 279; 26 L. Ed. 735. Pittsburgh Co. v. Heck, 102 U. S. 120; 26 L. Ed. 58. Collier v. Jenks, 19 R. I. 493; 34 Atl. 998. Lewis v. McDougall, 19 Wash. 388 ; 52 Pac. 664. Newmark v. Marks, 28 Pac. 960. Marfel v. Knott, 128 Pa, SL 528; 18 Atl. 390. Souster v. Black, 87 la. 519 ; 54 N. W. 534. Roehl v. Baasen, 8 Minn. 26. Chicago Co. v. Elliott, 117 Mo. 549 ; 24 S. W. 53. Emeric v. Alvarado, 90 Cal. 444 ; 27 Pac. 356. Mahany v. People, 138 111. 311; 27 N. E. 918. 99. Voorman v. Voight, 46 Cal. 392. Downey v. Read, 125 Mo. 501; 28 S. W. 860. State v. Ballard, 79 N. Car. 627. Griggs v. Howe, 31 Barb. 100. Weis v. Madison, 75 Ind. 241. Roberts v. Graham, 73 U. S. ; 6 Wall 578; 18 L. Ed. 791. 100. U. S. v. Carey, 110 U. S. 51. 1. Roberts v. Graham, supra. 2. Barnum v. Andrews. 106 Mich. 81 ; 63 N. W. 983. CIVIL PRACTICE. 437 concerned unless the objection be supported and re-enforced by a proper exception ; for without such exception, the objecting party will be held to have abandoned his objection and waived any error of the trial court in its ruling on the evidence 8 . And to be of any avail, the exception must be timely, following immediately after the ruling of the court 4 , for if be not made at that time, much diffi- culty would be incurred in finding the evidence ob- jected to and attaching it to the proper exception. To permit or countenance this would be going be- yond the bounds of reason, for the purpose of courts is to administer justice through convenient and speedy means, and rules of evidence are devised and applied to facilities the despatch of judicial business, and not to become straws to save sub- merged counsel. These rules are uniformly applied unless changed by statute or rules of court 5 . Thus, it is held that a party objecting to the admission of evidence will be held to have waived any error in 3. Clark v. Hodges, 65 Vt. 273. Newport News v. Pace, 158 U. S. 63. Sahlien v. Lonoke Bank, 90 Term. 221; 16 S. W. 373. Halstead v. Horton, 38 W. Va. 727. Kumler v. Ferguson, 22 Minn. 117. Branson v. Com. 92 Ky. 330 ; 17 S. W. 1019. Morris v. Everly, 19 Colo. 529 ; 36 Pac. 150. Benepe v. Wash., 38 Kans. 407; 16 Pac. 950. Fager v. State, 22 Neb. 332; 35 N. W. 195. 4. Chambers v. Baptist Soc., 1 B. Mon. 215 (Ky.). Pool v. Fleeger, 36 U. S. ; 11 Pet. 185; 9 L. Ed. 681. Texas, etc., Ry. v. Saxton, 7 N. Mex. 302 ; 34 Pac. 532. Tayloe v. Steamship Co., 88 N. Car. 15. Guerlnger v. Creditors, 33 La. Ann. 1279. Feidler v. Motz, 42 Kans. 519 ; 22 Pac. 561. Griffiths v. Hanks, 91 Mo. 109 ; 4 S. W. 508. Downey v. Read, 125 Mo. 501; 28 S. W. 860. Collins v. Bank, 75 Tex. 254 ; 11 S. W. 1053. McPhee v. Sullivan, 77 Wls. 33; 45 N. E. 808. Watson v. Skating Rink, 177 111. 203 ; 52 N. E. 317. 6. In re Brundage, 31 App. Div. 348; 52 N. T. Supp. 362. Greenbrter Ex. v. Ocheltree, 44 W. Va. 626 ; 30 S. E. 78. 438 THE LAW OF WAIVER. the court's ruling by failing until after verdict to have an exception noted 6 . The principle of waiver of errors in the admission of evidence by failure to preserve proper exceptions at the proper time is equally applicable to cases tried by the court and those tried to a jury unless changed by statute 7 . Sec. 445. It makes no difference what the ob- jection to the admission of evidence may be, the rules are the same. The evidence may be hearsay, secondary, parol introduced to vary the terms of a writing, may be offered without the required found- ation or preliminary proof, or irrelevant, immate- rial or incompetent in any manner, but whatever be the facts rendering it inadmissible, it will be ad- mitted unless objection be made at the time it is of- fered ; and if objected to at the proper time, any er- ror of the court in its ruling receiving the evidence will be waived unless the objector except to the ruling of the court at the time it is made 8 . Sec. 446. The principles of waiver governing in the admission or exclusion of evidence apply with equal force where a ruling is made on the competency of a witness. When the testimony is 6. Tayloe v. Steamship Co., 88 N. Car. 15. 7. MoCullough v. Biedler, 66 Md. 283 ; 7 Atl. 454. 8. Coleman v. Davis, 13 Colo. 98 ; 21 Pac. 1018. Sims v. State, 87 Ga. 589; 13 S. E. 551. Paxon v. Brown, 61 Fed. 874. Spies v. Illinois, 123 U. S. 143. Allen v. Ozark Co., 55 Ark. 549 ; 18 S. W. 1042. Sherwood v. Sissa, 5 Nev. 349. Huey v. Drlnkgnave, 19 La. 482. Zabel v. Hyenhuis, 83 la. 756; 45 N. W. 999. Lyons v. Child, 61 N. H. 72. Brown v. Oldham, 123 Mo. 621 ; 27 S. W. 409. Lamberts v. Cooper, 29 Gratt. 61. Holman v. Ry. Co., 114 Mich. 308; 72 N. W. 202. Colo. Co. . Brown, 15 Colo. 195 ; 25 Pac. 87. Wise v. Wakefleld, 118 Cal. 107; 53 Pac. 664. CIVIL PRACTICE. 439 offered, it is the duty of him who will be prejudiced by the witness to register an objection to the wit- ness and whichever way the court rule, the losing party should have an exception noted; for if he fail to except, he will be held to have waived his ob- jection and any error of the court in its ruling there- on 9 . And the same is true if the objection be to the question asked 10 , or that evidence was not offered in the proper time 11 . And it is safe to say that the general rule, subject to but few exceptions, is that where there is an objection in the course of taking the evidence in a case, the ruling thereon must be excepted to at the time or the objection is waived and the waiver precludes consideration of the point on appeal. 4. WAIVEE AS TO NON-SUITS : See. 447. A non-suit is a mode of taking a case from the jury in which the court determines as a matter of law that there is no evidence before the jury upon which they could find a verdict for the plaintiff. In those jurisdictions where the practice obtains of moving for a non-suit, the test seems to be that if from a view of all the evidence it is apparent that the court would be required in the interest of justice to set aside a verdict if one should be rendered for the plaintiff, it is the court's duty to grant a non-suit upon motion of the defendant therefor. But, if 9. State v. Steeves, 29 Greg. 85; 44 Pax;. 898. Walker v. State, 34 Fla. 167 ; 16 So. 80. Brown v. Foster, 112 Mo. 297; 20 S. W. 611. Young v. Omohundro, 69 Md. 424 ; 16 Atl. 120. Downey v. Hicks, 14 How. 240; 14 L. Ed. 404. Auchampaugh v. Schmddt, 70 la. 642 ; 27 N. W. 805. 10. Corcaran v. Batchelder, 147 Mass. 541; 18 N. E. 420. Scott v. Lloyd, 9 Pet. 418 ; 9 L. Ed. 178. 11. Olmstead v. Webb, 5 App. D. C. 38; 23 Wash. L. R. 169. Kingman v. Sharley, 1 Mo. App. 281. 440 THE LAW OF WAIVER. viewed in its most favorable light, the evidence of plaintiff could in any way warrant a verdict in his behalf, a non-suit should be denied. Sec. 448. But cases are not always made up of the evidence of plaintiff alone, for it frequently occurs that the defendant, in presenting his side of the controversy, may supply a link in the chain, the absence of which had up to that time rendered plain- tiff's case imperfect. Accordingly, the rule has been generally adopted that if the court has erro- neously overruled the motion of defendant for a non- suit on account of the absence of evidence required to make out a case for the plaintiff, the defendant waives his right to a non-suit and any error of the court in overruling his motion by himself introduc- ing evidence which supplies the defects in plain- tiff's proof 12 . Or, as it has been said, "where a mo- tion for a non-suit was improperly denied, but the defendant then introduced testimony enabling the plaintiff to supply the defect in his case, that de- fendant thereby waived the objection" 13 . On the trial of a cause, after the plaintiff had introduced his evidence which, as the appellate court found, was insufficient to warrant a verdict for him, the defendant introduced evidence supplying the de- fects in the case of plaintiff; and the appellate court on this point said that it seems to be well set- tled that if a defendant, after a motion for a non- 12. Barrow v. Lumber Co., 14 Idaho, 698 ; 95 Pac. 682. Smith v. Compton, 6 Cal. 24. Oakes v. Thornton, 28 N. H. 44. 13. Smith v. Compton, 6 Cal. 24, cited in: Jennings v. Bank, 13 Colo. 417; 22 Pac. 777; 16 A, S. R. 210. Illstad v. Anderson, 2 N. Dak. 167; 49 N. W. 659. Bogk v. Gassert, 149 U. S. 17 ; 13 Sup. Ct R. 738. Trickey v. Clark, 50 Oreg. 516 ; 93 Pac. 457. N. W. Pac. Co. v. Bentley, 93 Pac. 150. CIVIL PEACTICE. 441 suit, himself supplies the evidence on the want of which his motion was founded, he cannot have a reversal on the technical ground that such evidence was not before the court when the non-suit was asked 14 . Sec. 449 It is said, too, that the defendant waives any error of the trial court in overruling his motion for a non-suit if he fail to renew his motion at the time the testimony is closed and after he has introduced evidence. The same authorities hold him to a waiver if he introduce evidence after the overruling of his motion 15 . But, despite the eminence of the authorities sustaining the doctrine, we find it hard to perceive its justice. The true rule ought to be that if a defendant properly pre- sents his motion for a non-suit after the plaintiff has presented all of his evidence, he should not, from the mere fact of introducing his side of the controversy, be precluded from having a review of the decision of the trial court overruling his mo- tion, to which decision he has duly excepted. This view is more persuasive in the light of the law that the burden is upon the plaintiff to make out his case upon his own evidence. Some cases have ap- proached this view in saying that the denial of a motion for a non-suit before the introduction of the defendant's evidence will not prevent the grant- ing of such a motion after the defendant's evidence has been introduced, if a verdict for the plaintiff 14. Barton v. Kane, 17 Wis. 38 ; 84 A. D. 728. Bounsaball v. Pease, 45 Wis. 511. Hyland v. Sherman, 2 E. D. Smith 234. 15. Barrow v. Lumber Co., 14 Idaho 698 ; 90 Pac. 682. Dunham Co. v. Dandelin, 143 111. 409 ; 32 N. E. 258. Accident Ins. Co. v. Crandal, 120 U. S. 527; 7 Sup. Ct. R. 685. G-aylord v. Gallagher, 20 N. Y. S. 682. 442 THE LAW or WAIVER. could not be sustained upon the evidence 16 . Per- haps most cases hold this, but they do not go far- ther. Sec. 450. If a defendant move for a non-suit upon one ground, he must stay by that till the last, for he will, by thus limiting his motion, be held to have waived all other grounds upon which he might have asked for a non-suit. As was said in one case, a party cannot avail himself of a different position, on appeal, from that which he assumed in the court below. This doctrine is well established and is necessary to be sustained in order that the plaintiff may not be misled in the course of the trial and in the settlement of the bill of exceptions in case the non-suit should be ordered 17 . And if it does not appear in the record that any grounds were stated in the motion, there is nothing that can be re- viewed 18 . Sec. 451. But as in all other cases of rulings or decisions by the court during the progress of a trial, the party against whom the ruling on a motion for a non-suit goes must take a proper and timely exception to the ruling or he will be deemed to have waived any error and precluded the right to have the ruling reviewed 19 . 16. Fagundes v. Cent. Ry. Co., 79 Cal. 97 ; 21 Pac. 437 ; 3 L. R. A. 824. 17. Mateer v. Brown, 1 Cal. 221 ; 52 A. D. 303. Bronzan v. Drobaz, 98 Cal. 647 ; 29 Pac. 254. 18. Loring v. Stewart, 79 Cal. 200 ; 21 Pac. 651. 19. Wyatt v. Evins, 52 Ala. 285. McBride v. Latham, 79 Ga. 661 ; 4 S. E. 928. Harper v. Dall, 92 N. Car. 394. Stewart v. Davenport, 23 Minn. 346. Blair v. Pray, 103 111. 615. Brown v. Warren, 16 Nev. 228. Oakes v. Thornton, 28 N. H. 44. Harrison v. Bank, 9 Mo. 161. CIVIL PEACTICE. 443 5. DEMURRER TO THE EVIDENCE :- Sec. 452. A demurrer to the evidence is analogous to a demurrer to the facts alleged in a pleading. By it the trial court is called upon to declare the law upon the facts presented, and it is a means of taking the case from the jury when the facts, after the law has been applied to them, are not sufficient for the jury to find a verdict upon for plaintiff. Sec. 453. In cases of a demurrer to the plain- tiff's evidence, the authorities seem to hold, as in cases of a motion by defendant for a non-suit, that if the defendant demurs to the plaintiff's evidence and his demurrer be overruled, he waives his excep- tion to, and consequently his right to insist upon, his demurrer by afterward introducing his evidence. And it is said that the rule is the same where the defendant, instead of demurring to the evidence moves for a peremptory instruction to the jury to render a verdict in his favor. If, after such request is denied, the defendant introduces his evidence, he thereby waives any objection to the ruling of the court in denying such request 20 . The case from the federal court cited in the preceding note, with others of like holding, is cited with approval in Elliott's General Practice 21 . But another case is cited in the same work showing an opposite view of the same question 22 . This latter case is from a Missouri 20. German Ins. Co. v. Frederick, 68 Fed. 144, citing: Railroad Co. v. Hawthorne, 144 U. S. 202; 12 Sup. Ct. R. 591. Joilet Co. v. Shields, 134 111. 209; 25 N. E. 569. 21. 2 Elliott's Gen. Prac. 865, citing: Accident Ins. Co. v. Crandal, 120 U. S. 527; 7 Sup. Ct. R. 685. Railroad v. Hawthorne, 144 U. S. 202; 12 Sup. Ct. R. 591. Bradley v. Poole, 98 Mass. 169. Gluck v. Oox, 90 Ala. 331 ; 8 So. 161. 22. Weber v. Kans. City Co., 100 Mo. 194; 12 S. W. 804 and 13 S. W. 587; 18 A. S. R. 541. 444 THE LAW or WAIVER. court, and with due deference to the authorities first cited, and recognizing their controlling weight, it yet occurs to the writer that the Missouri case has the better reasoning and the better principle back of it. The rule supported by a majority of cases appears technical in its application ; the reason upon which it is founded being that by a demurrer, joined in by both parties, the case is effectually taken away from the jury, and it is difficult to see how a case can be literally taken from the jury and yet submitted to them for decision. But it should be remembered that a demurrer to the evidence is simply saying that the plaintiff has made no case, a proceeding analogous to a demurrer to a complaint for failure to state a cause of action; and the rule being uni- versal that the latter demurrer may be made at any time and is never waived, similar reasoning dic- tates that the former demurrer be given the same latitude within which to operate, and that a defend- ant should be permitted to demur to the evidence at the close of the plaintiff's case, introduce his evi- dence in the event of an adverse ruling, demur again at the close of the trial as was done in the Missouri case, and even to insist upon it on appeal. Of course, by introducing his evidence after the overruling of his demurrer, a defendant runs the risk of supplying the defects in plaintiff's case, which would be fatal to his demurrer; but this is a risk he should be permitted to take if he see fit as it cannot work damage to the plaintiff, whereas, the other rule might frequently, through the mis- taken belief of counsel in the justness of their de- murrer, be the cause of grievous hardships to liti- gants. Sec. 454. Of course, after the court rules upon CIVIL PRACTICE. 445 a demurrer to the evidence, it is necessary, as in all other decisions, that the losing party ex- cept to the ruling in order to have it reviewed on appeal ; for a failure to so except is deemed an aban- donment of the demurrer and a waiver of any right to insist upon it on appeal. 6. DIRECTING VEEDICT : Sec. 455. When the plaintiff, in the trial of a civil action, has intro- duced all of his evidence other than that properly to be offered as rebuttal, if there be nothing more than a mere scintilla of evidence in support of the cause of action alleged in the complaint or petition, the defendant has the right, upon proper applica- tion, to have the court direct the jury to render a verdict for him. The plaintiff has the same right to a directed verdict at the close of the defendant's evidence if there be nothing more than a scintilla of evidence in support of the alleged defense. But in order for his application to have any reserved force or future effect, the party moving for a directed ver- dict must stand squarely upon his motion ; for if he introduce evidence after the overruling of his mo- tion, he will be deemed to have abandoned it and waived his right to insist upon the ruling of the court as error 23 . This rule does not mean, however, that after a party's motion to direct a verdict has been overruled, his subsequently introducing evi- dence waives his right to again make the same re- quest at the close of all the evidence 24 . But the lat- 23. Columbia v. Hawthorne, 144 U. S. 202 ; 12 Sup. Ct. R. 591. Walker v. Windsor Bank, 56 Fed. 76. Chicago Co. v. Van Vleck, 143 111. 480; 32 N. E. 262. Poling v. Ohio, etc., Co., 38 W. Va. 645; 18 S. E. 782. 24. Weber v. Kans. City Co., 100 Mo. 194; 12 S. W. 804 and 13 S. W. 587; 18 A. S. R. 541. McPherson v. St. Louis Ry. Co., 97 Mo. 254 ; 10 S. W. 84. Rochat v. No. Hudson Co., 49 N. J. L. 445 ; 9 Atl. 688. 446 THE LAW OF WAIVEE. ter request is not a revival of the former, for that has been abandoned through waiver; it is merely a new motion to direct, made as if no other had been interposed. 7. INSTRUCTIONS A. IN GENERAL: Sec. 456. Among the in- numerable windings and turnings occurring in the trial of almost every case where the services of a jury are availed of, any court is likely to fall into error in the matter of instructing the jury as to the law to be applied to the facts of the particular case. For this reason, it is necessary for counsel to assist courts all they may by calling to their attention er- rors or irregularities in the giving or failing to give instructions, so that they may be avoided. And to the same extent that counsel must point out errors to the trial court in its instructions, they must also make request for instructions in any particular they deem material, for otherwise in either instance any error will be deemed waived. B. INSTRUCTIONS GIVEN: Sec. 457. Fol- lowing the rule generally applicable to all subjects of the law, a party having cause of complaint against instructions given by the court must, for the benefit of the court and his opponent, point out the alleged defects in order that errors may be cor- rected and the expense and annoyance of an appeal and a second trial thus obviated. This is properly done by an objection to the instruction in which is pointed out the particular reasons rendering the in- structions improper. This objection is solely for the benefit of the trial court and the opposing party ; but if the objector desire to save the point made by him for the purpose of having alleged errors re- CIVIL PEACTICE. 447 viewed in an appellate court, he must, in the event of a ruling by the court adversely to him, duly ex- cept to such ruling. For it is the general rule, sub- ject only to statutory qualification in any case of de- parture, that without such objection taken at the trial to instructions there given, error cannot be predicated upon them in the appellate court ; and by such failure to object and to point out to the trial court what is claimed as error, a party waives the irregularities or defects in the instructions 25 . The rule is the same whatever may be the reasons or grounds of complaint rendering the particular in- struction objectionable. It may be that the instruc- tions are erroneous in that they do not state the law correctly 26 , or that they are insufficient 27 , or that 25. State v. Bayne, 88 Mo. 604. Ritzenger v. Hart, 43 Mo. App. 183. McDaneld v. Logi, 143 111. 487; 32 N. E. 423. Pielke v. Chicago Co., 6 Dak. 444; 43 N. W. 813. McSwain v. Ho well, 29 Fla. 248 ; 10 So. 588. Chattahoochee Co. v. Sullivan, 86 Ga. 50; 12 S. E. 216. State v. Sheard, 35 La. Ann. 543. People v. Caldwell, 107 Mich. 374; 65 N. W. 213. Carter v. Mo. Co., 41 Pac. 356 (Okla.) St. Louis, etc. Co. v. Vincent, 36 Ark. 451. Mo. Co. v. Johnson, 44 Kans. 660; 24 Pac. 1116. Wheatley v. Waldo, 36 Vt. 237. Burnet v. Cavanaugh, 56 Neb. 190; 76 N. W. 578. McFarland v. So. Imp. Co., 107 N. Car. 368. State v. Anderson, 20 Wash. 193 ; 55 Pac. 39. Dawson v. Coston, IS Colo. 493 ; 33 Pac. 189. Gum v. Murray, 6 Mont. 10. Thirkfleld v. Mtn. View Assoc., 12 Utah 76 ; 41 Pac. 564. Jenkins v. Dean, 130 N. Y. 275 ; 29 N. E. 126. Territory v. O'Donnell, 4 N. Mex. 196 ; 12 Pac. 743. Lawrence v. Bucklen, 45 Minn. 195 ; 47 N. W. 655. Simonds v. Baraboo, 93 Wis. 40 ; 67 N. W. 40. Leeper v. State, 29 Tex. App. 63. Kennedy v. Cunningham, 59 Ky. 538. Eddy v. .Lafayette, 163 U. S. 456 ; 16 Sup. Ct. R. 1082 ; 41 L. Ed, 225. 26. Williamson v. State, 30 Tex. App. 330; 17 S. W. 722. Bourke v. Van Keuren, 20 Colo. 95; 36 Pac. 882. 27. Box v. Kelso, 5 Wash. 360; 31 Pac. 973. 448 THE LAW or WAIVER. i they are not suited to the issues 28 , or are a misstate- ment of the issues 29 , or of law 30 , or a submission of law to the jury 31 , or that they are a comment on the weight of the evidence 32 ; or there may be error in failing to define terms used in instructions 33 , or in assuming controverted facts to be uncontroverted 34 , or the instructions may be subject to successful at- tack for any other reason going to their substance or applicability to the issues involved ; but whatever the cause of complaint or the ground of objection, the attention of the court must be called thereto at the time of the giving of the defective instructions, or the matter cannot be urged on appeal 35 . Sec. 458. As well as being deficient in some matter of substance, instructions may be erroneous in matters of form, the rule being the same in either case, for a proper objection must be made or any er- ror will by such failure to object be waived. Thus, the fact that instructions are incomplete 36 , or uncer- tain and ambiguous 37 , or that they are inconsistent 28. Shaw v. N. T. etc. Co., 150 Mass. 182 ; 22 N. B. 884. Stoner v. Devilbiss, 70 Md. 144; 16 Atl. 440. 29. Milmo v. Adams, 79 Tex. 526; 15 S. W. 690. 30. Bergh v. Sloan. 53 Minn. 116 ; 54 N. W. 943. 31. Stansbury v. Fogle, 37 Md. 369. 32. Atchison Co. v. Worley, 25 S. W. 478 (Tex.) 33. People v. Flynn, 73 Cal. 511 : 15 Pac. 102. Cogswell v. West., etc., Co., 5 Wash. 46; 31 Pac. 411. Johnson v. Mo. Pac., 96 Mo. 340, 9 S W. 790. 34. State v. Fenalson, 78 Me. 495; 7 Atl. 385. 35. Phelps v. Mayer, 15 How. 150 (U. S.). Cheatham v. Wilbur, 1 Dak. 335; 46 N. W. 580. Hayes v. Solomon, 90 Ala. 520; 7 So. 921. Spooner v. Handley, 151 Mass. 313 ; 23 N. B. 840. Wray v. Carpenter, 16 Colo. 271 ; 27 Pac. 248. Burr v. Joy, 151 Mass. 295; 23 N. E. 838. Humph v. Hiott, 35 S. Car. 444 ; 15 S. E. 235. Muetze v. Tuteur, 77 Wls. 236 ; 46 N. W. 123. 36. Goldhammer v. Dyer, 7 Colo. App. 29 ; 42 Pac. 17T. 37. People v. Olsen, 80 Cal. 122; 22 Pac. 125. Holm v. Sandberg, 32 Minn. 427; 21 N. W. 416. CIVIL PRACTICE. 449 with each other 38 , or that formal requirements have not been complied with, as that special instructions are not numbered and signed 39 , or two paragraphs were written on the same page 40 , or that the instruc- tions are misleading 41 any of these defects, while fatal to the instructions, if properly called to the at- tention of the court, will be held waived unless ob- jected to at the time the instructions are given. (1) WAIVER OF WRITTEN INSTRUC- TIONS: Sec. 459. Parties having the right to a written charge to the jury cannot with impunity sit silently by and see that right transgressed. To be available in a higher court, complaint of error must be predicated upon a proper and timely objection in the trial court to the manner in which instructions are given. The objection must be timely in that it must be registered at the time the instructions are given ; and it must be proper by being placed on the particular ground that oral instructions are not satisfactory; otherwise, the irregularity or error will be held waived 42 . And the same effect was held to have resulted where the failure to make a timely objection was caused by an agreement between counsel that "at any time within which a stay was granted either party might take exceptions to the charges or any part thereof." The appellate court said that it is not competent for counsel to sit by and make no objection to oral instructions where 38. Williams v. So. Ry. Co. 110 Pac. 457 ; 42 Pac. 974. 39. Moffatt v. Tenney, 17 Colo. 189 ; 30 Pac. 348. 40. Davenport v. Cummings, 15 la. 219. 41. Pellum v. State, 89 Ala. 28 ; 8 So. 83. 42. Jacobs v. Mitchell, 2 Oolo. App. 456 ; SI Pac. 235. Wright v. Gillespie, 43 Mo. App. 244. Sackett's Instructions, 14. Vanwey v. State, 41 Tex. 639. Leonardo v. Territory, 1 N. Mex. 291. 450 THE LAW OF WAIVES. given on that ground, and by agreement save their exceptions weeks later. Such a course is not fair to the court and has the support of no adjudicated case so far as we know. When counsel so sit by without objection, they must be held to have waived the error 43 . (2) EXCEPTIONS : Sec. 460. As in all other cases of error in the trial of a cause, an objec- tion to an instruction as given is for the benefit of the trial court, to call to its attention errors therein so that same may be properly corrected. But on ap- peal, the objection is futile unless followed in due course by an exception to the court's decision over- ruling the objection. Without this exception, the legal conclusion is inevitable that the objector is sat- isfied with the court's ruling and has abandoned his objection. While this is the regular course to pur- sue, it frequently occurs that at the outset the ob- jection takes the form of an exception, the party ag- grieved simply notifying the court that he excepts to the opinion and direction of the court 44 . But whatever form it may assume, the rule, except where modified by statute 45 , is universal that a fail- ure to except to an instruction amounts to a waiver of any irregularities or errors therein, which means 43. Boss v. No. Pac. R. Co., 2 N. Dak. 128; 49 N. W. 656; 33 A. S. R. 756. See: Garton v. Bank, 34 Mich. 279. U. S. v. Gough, 8 Utah 428; 32 Pac. 695. 44. 2 Thompson, Trials, Art. 2395. 46. Wesson v. State,- 109 Ala. 61 ; 19 So. 514. Denver, etc. Ry. v. Bedell, 11 Colo. App. 139; 54 Pac. 280. Marriner v. Jno. L,., etc. 113 N. Car. 52; 18 N. E. 94. Little River Co. v. Fitzpatrick, 42 Oh. St. 318. Gassert v. Bogk, 1 Mont. 585; 19 Pac. 281; 1 L. R. A. 240. Internat'l Co. v. Click, 5 Tex. Civ. App. 224 ; 23 S. W. 833. CIVIL PRACTICE. 451 that same cannot be nrged on appeal 46 . And the rule is the same where the error is in the modifica- tion of a requested instruction 47 . Sec. 461. It is a general rule to be followed with absolute safety and to be departed from only with prospects of peril, that where an exception is taken to an instruction it must point out the alleged defect, and must be directed not to the charge as a whole, but to those portions considered objection- able. For a general exception is not available as to specific defects if any one of the propositions in the 46. Lowell v. Gathright, 97 Ind. 313. McSwain v. Howell, 29 Fla. 248. Jackson v. Com., 12 Ky. L. R. 575 ; 14 S. W. 677. Lobdell v. Hall, 3 Nev. 507. McCart v. Squire, 150 Mass. 484 ; 23 N. E. 323. City v. Smith, 47 Neb. 408; 66 N. W. 538. Packard v. Bergen Co., 54 N. J. L. 553 ; 23 Atl. 722. State v. Hilsabeck, 132 Mo. 348; 34 S. W. 38. Lefkow v. Allred, 54 Mo. App. 141. Cram v. Gas Co., 75 Hun 316. Georgia Ry. Co. v. West, 66 Miss. 310; 6 So. 207. Williams v. So. Pac. Ry., 110 Cal. 457 ; 42 Pac. 974. Werner v. Jewett, 54 Kans. 530; 38 Pac. 793. Territory v. O'Donnell, 4 N. Mex. 66 ; 12 Pac. 743. Dugan v. Thomas, 79 Me. 221 ; 9 Atl. 354. Chemical Co. v. Johnson, 101 N. Car. 223 ; 7 S. E. 770. Berry v. Smith, 2 Okla. 345 ; 35 Pac. 576. State v. Williams, 13 Wash. 33'5 ; 43 Pac. 15. Everett v. Summer, 32 Oh. St. 562. Leach v. Hill, 97 la. 81 ; 66 N. W. 69. Nor fork Co. v. Hoover, 79 Md. 253 ; 29 Atl. 994. Willard v. Petitt, 153 111. 663; 39 N. E. 991. Hawley v. Harran, 79 Wis. 379; 48 N. W. 676. Tucker v. U. S., 151 U S. 164. Hedden v. Iselin, 142 U. S. 676. Little Rock Co. v. Dallas Co., 66 Fed. 522. 47. Tracey v. State, 46 Neb. 361 ; 64 N. W. 1069 ; and It is the same where the error is technical in its nature, as a failure to number the instructions: Moffat v. Teeney, 17 Colo. 189; SO Pac. 348; Jolly v. State, 43 Neb. 587; 62 N. W. 300; Cunning- ham v. Seattle Elec. Co.. 3 Wash. 471; 28 Pac. 745; or failure of the judge to sign the instructions; Jones v. Greeley. 25 Fla. 629; C So. 448.- 452 THE LAW or WAIVER. charge is correct 48 . And the principle that objec- tion or exception to any proceeding on one ground only is a waiver of all other grounds of complaint is applicable to instructions. For it is said that a party excepting must make his exception so specific that the matter relied on as error will be apparent to his adversary and to the primary court. For his adversary, having his attention directed to the spe- cial matter alleged erroneous, has the right and privilege of waiving such matter rather than, by in- sisting on it, incur the hazard and delay of an ap- peal to a superior tribunal. The court, having its attention specially directed to the erroneous mat- ter, might be satisfied of the error into which it may have fallen through inadvertence, and could voluntarily correct it by a reversal of its rulings, and thus protect the parties excepting from all injury 49 . And one ground of exception only being specified at the trial, no others will be considered on appeal, for the conclusive presumption is that others are waived 50 . 48. Fordyce v. Russell, 59 Ark. 312; 27 S. W. 82. Willis v. State, 93 Ga. 208 ; 19 S. E. 43. Campbell v. Arruth, 32 Fla. 264 ; 13 So. 432. Crosby v. Wilson, 53 Kans. 565 ; 36 Pac. 985. Reeves v. Harrington, 85 la. 741; 52 N. W. 517. Cavallaro v. Tex. etc. Co., 110 Cal. 348; 42 Pac. 918. Hickam v. People, 137 111. 75; 27 N. E. 88. Reynolds v. Boston Ry., 43 N. H. 580. Gross v. Hays, 73 Tex. 515 ; 11 S. W. 523. Lichty v. Tannatt, 11 Wash. 37; 39 Pac. 260. Newport News v. Pace, 158 U. S. 36. Green v. Hanson, 89 Wis. 597 ; 62 N. W. 408. People v. Hart, 10 Utah 204; 37 Pac. 330. Main v. Oien, 47 Minn. 89 ; 49 N. W. 523. Com. v. Tolman, 149 Mass. 229; 21 N. E. 377. Hooks v. Houston, 109 N. Car. 623; 14 S. E. 40. 49. Irvin v. State, 50 Ala. 181, cited in: 8 Am. & Eng. Enc. L. 264. 60. Phipps v. Pierce, 94 N. Car. 514. Concoran v. Harran, 55 Wis. 120; 12 N. W. 468. Sanford v. Gates, 38 Kans. 405; 16 Pac. 807. CIVIL PRACTICE. 453 Sec. 462. The cases in which the above points have been decided are almost innumerable, and the citation of them all would only present a mass of adjudications for counsel to wade through, all of which, through their various intermingling of facts, present a parallel tendency in the same direction. But a few illustrations will .serve to show more clearly the application of the principles outlined. Thus, if the court fail to write the word "given" on an instruction as required by law, this error is waived unless that ground of complaint be specified in an exception 51 . And the same is true of failure of the court to define malice in a case where that definition is required 52 , and where the exception was that the verdict was contrary to the instructions of the court, this does not raise the question of the le- gality of the instructions 53 . Or, where the excep- tions are on the ground that the court did not per- mit a question of fact to be submitted to the jury, the exception is unavailing if there was no ques- tion of fact involved 54 . So, a general exception will not present the question of the completeness of the instructions 55 . And it may be stated as a general rule that a general exception will be insufficient to present any special ground of error, and that such will be waived and ineffective if any part of the in- structions is correct or applicable 56 . So, where the 51. Omaha Co. v. Hansen, 32 Neb. 449 ; 49 N. W. 456. 52. People v. Thiede, 11 Utah 241 ; 39 Pac. 837. 53. Britt v. Aylett, 11 Ark. 475. 54. Guggenheim v. Kirchofer, 66 Fed. 755. 55. Hamilton v. Great Falls Co., 17 Mont 334 ; 42 Pac. 860 ; 43 Pat 713. 56. Goodwin v. Perkins, 39 Vt 598. Grantz v. Price, 130 Pa. St. 415 ; 18 Atl. 646. Rock v. Indian Mills, 142 Moss. 522 ; 8 N. B. 401. Whelan v. Georgia, etc. Co., 84 Ga. 506 ; 10 S. E. 1091. Kearney v. Snodgrass, 12 Oreg. 317; 7 Pac. 309. 454 THE LAW OP WAIVER. general exception is to the whole charge, it will be of no avail if any portion of the charge is correct 57 . C. INSTEUCTIONS EEFUSED : Sec. 463. It is the duty of the court, when instructions are given by it, to cover fully and fairly the points in- volved in the case on trial. But if the court omit to instruct as to any of the points at issue between the parties, it is the duty of counsel to request instruc- tions on the particular point desired by them to be presented to the jury. If counsel fail to ask for such instructions as they think should be given, they will be held to have been satisfied and to have waived any error of the court in the omission, the consequence being that an appeal cannot be predi- cated upon such error 58 . In this connection, a dis- tinction exists and must be observed between the giving of erroneous instructions and the failure to Maling v. Crummey, 5 Wash. 222 ; 31 Pac. 600. Frost v. Grizzly Co., 102 Cal. 525; 36 Pac. 929. Serviss v. Stockstill, 30 Oh. St. 418. Burton v. West Jersey Co., 114 U. S. 474. State v. Chopin, 10 La. Ann. 458. Probst v. Trustees, 3 N. Mex. 373 ; 5 Pac. 702. 67. Beall v. Territory, 1 N. Mex. 507. Wallace v. Bxc. Bank, 126 Ind. 265; 26 N. E. 175. Welcome v. Mitchell, 81 Wis. 566 ; 51. N. W. 1080. Post v. Bird, 28 Fla. 1 ; 9 So. 888. Fleming v. L. D. Co., 48 Kans. 773 ; 30 Pac. 166. Brooks v. Dutcher, 22 Neb. 644 ; 36 N. W. 128. And see extended note In 99 A. D. 114, to the case of Strohn v. Detroit Co., 23 Wls. 126. 58. Territory v. Caldwell, 14 N. Mex. 535 ; 98 Pac. 167. Mead v. State, 53 N. J. L. 601 ; 23 Atl. 264. U. S. v. De Amador, 6 N. Mex. 173 ; 27 Pac. 488. Blount v. State, 30 Fla. 287. Darby v. Hayford, 56 Me. 246. Com. v. Zappe, 153 Pa. St. 498 ; 26 Atl. 16. McOadden v. Lowenstein, 92 Tenn. 614; 22 S. W. 426. State v. Schleller, 130 Mo. 510 ; 32 S. W. 976. Silberberg v. Pearson, 75 Tex. 287; 12 S. W. 850. Texas Co. v. Ludlam, 26 S. W. 430 (Tex.) Frick v. Wilson, 36 S. Car. 65; 15 S. E. 331. Johnson v. Sherwood, 45 Minn. 9 ; 47 N. W. 262. Small v. Williams, 87 Ga. 681 ; 13 S. E. 589. CIVIL PRACTICE. 455 give correct and adequate instructions. In the for- mer case the objection is sufficiently called to the at- tention of the trial court by a single objection and exception, and it is not necessary to request and submit a correct instruction to be given in the place of the erroneous one. But in the case of a mere fail- ure to give correct instructions covering the case, the error is not available on appeal in the absence of a request by the appellant for a proper instruc- tion 59 . And where the charge is, for any reason, incomplete, incorrect or unsatisfactory, the party dissatisfied with it ought, before the jury leaves the bar, to ask the court to make it correct. He should not acquiesce in the instruction, take his chances with the jury, and, after the verdict is against him, claim the benefit of error in the in- structions 60 . The rule is the same whatever the cause rendering the charge erroneous. Sec. 464. Thus, error cannot be predicated on the fact that an instruction is obscure where a party complaining fails to ask for an explanatory or qual- ifying charge 61 , and the same is true if the charge be misleading 62 , although this latter is contrary to some decisions which, with better reason, hold that if the charge be clearly misleading the case should be reversed even though correct instructions were not requested 63 . The rule is applied, however, 59. 1 Blashfleld's Instructions, Art. 362. 60. Schuylkill Co. v. Munson, 14 Wall. 442 (U. S.) 61. Fife v. Com. 29 Pa. 429. Stock-well v. Byrne, 22 Ind. 6. 62. Towns v. State, 111 Ala. 1 ; 20 So. 698. Wyman v. Hart, 12 How. Pr. 122. Churchill v. Gronewig, 81 la. 449 ; 46 N. W. 1063. Jones v. State, 49 Ind. 549. Milne v. Ponchertrain, 9 La. 257. 63. Pierson v. Duncan, 162 Pa. St. 187 ; 29 Atl. 733. Internat. Co. v. Phillips, 63 Tex. 590. Hill v. Newman. 47 Ind. 187. 456 THE LAW OF WAIVER. where the instructions are vague, indefinite and un- certain, for it is clearly the duty of him who is dis- satisfied to present an instruction which meets with his approval and request that it be presented to the jury, failing in which he will be held to any error on account of such elements in the charge 64 . And a request for correct instructions is necessary in case of ambiguity 65 , or where the court fails to explain or define terms 66 , such as ''adverse possession" 67 , "reasonable care and diligence" 68 , "reasonable doubt" 69 , "negligence," "gross negligence," "ordi- nary care," "unfitness," and so forth 70 . And it is accessary to make a request for a proper instrue- :ion as to probable cause in an action for malicious prosecution 71 ; or as to mental capacity where that is involved 72 ; notice 73 ; adverse possession 74 ; statute 3f limitations 75 ; fellow servants 76 ; measure or miti- 64. Bousel v. Stanger, 73 Tex. 670; 11 S. W. 906. State v. Falk, 46 Kans. 500. Clapp v. Minn., etc. Co., 36 Minn. 6 ; 29 N. W. 340. People v. Olsen, 80 Cal. 122 ; 22 Pac. 125. 65. McQuillan v. Seattle, 13 Wash. 600 ; 43 Pac. 893. Stratton v. Staples, 59 Me. 94. Schoellhamer v. Rometsch, 26 Oreg. 394; 38 Pac. 344. 66. State v. Potter, 15 Kans. 302. Texas, etc. Ry. v. O'Donnel, 58 Tex. 27. 67. Robinson v. Mclver, 23 S. W. 915 (Tex.). 68. Johnson v. Mo. Pac. Ry., 96 Mo. 340 ; 9 S. W. 790. 69. People v. Plynn, 73 Cal. 511; 15 Pac. 102. 70. Kelley v. Cable Co., 7 Mont 70. Galveston Co. v. Arispe, 81 Tex. 517; 17 S. W. 47. Quirk v. St. Louis Co., 126 Mo. 279 ; 28 S. W. 1080. 71. Peterson v. Toner, 80 Mich. 350 ; 45 N. W. 346. Lueck v. Heisler, 87 Wis. 644; 58 N. W. 1101. 72. Berryman v. Schumaker, 67 Tex. 312; 3 S. W. 46. 73. Brown v. Foster, 41 S. Car. 118. Street v. Lynch, 38 Ga. 631. 74. Robinson v. Mclver, 23 S. W. 915 (Tex.) Wood v. Figard, 28 Pa. St. 403. 75. Hocker v. Day, 80 Tex. 529 ; 16 S. W. 322. 76. Phila. & R. Ry. v. Trainer, 137 Pa. 148 ; 20 Atl. 632. CIVIL PKACTICE. 457 Cation of damages 77 ; scope of employment 78 ; false representations 79 ; effect 80 ; sufficiency 81 or purpose 82 of evidence; explanation of pleadings 83 ; and where the court fails to submit to the jury an issue raised by the pleadings 84 ; and it is the general rule that in order to raise the point that instructions are in- sufficient, a request for proper instructions should be made 85 . The rule is not, however, universal ; for in some states by statute the court is required to submit the law fairly and fully to cover the case, and his failure to do so is error for which a reversal will be ordered, even though no requests for instruc- tions were made. But even if this prevail by statute or by rule, if the instructions given fairly and sub- stantially cover the issues involved, the failure to give a particular instruction is not reversible error unless a request for it is made. (1) EXCEPTIONS TO BEFUSAL TO IN STEUCT: Sec. 465. A party presenting to the court an instruction with the request that it be sub- mitted to the jury has not thereby perfected his 77. Browning v. Wabash Ry., 124 Mo. 55 ; 27 S. W. 644. Page v. Flnley, 8 Oreg. 45. Buzzell v. Emerton, 161 Mass. 176 ; 36 N. E. 796. 78. Vernon v. Cornwell, 104 Mich. 62 ; 62 N. W. 175. 79. Davis v. Elliott, 15 Gray 90 (Mass.) 80. Hollywood v. Reed, 55 Mich. 308. Rowland v. Bartlett, 86 Ga. 669 ; 12 S. E. 1068. 81. Gottstein v. Seattle Co., 7 Wash. 424; 35 Pac. 133. Louisville Co. v. Spencer, 149 111. 97; 36 N. E. 91. 82. People v. Gray, 66 Cal. 276 ; 5 Pac. 240. Stone v. Redman, 38 Me. 578. Dow v. Merrill, 65 N. H. 107 ; 18 Atl. 317. Shumard v. Johnson, 66 Tex. 70 ; 17 6. W. 398. 83. Roebke v. Andrews, 26 Wis. 312. Conrad v. Kinzie, 105 Ind. 281 ; 4 N. E. 863. 84. Newton v. Whitney, 77 Wis. 515 ; 46 N. W. 882. Brinzer v. Longenecker, 169 Pa, St. 51 ; 32 Atl. 60. Lynch v. Johnson, 109 Mich. 640; 67 N. W. 908. 85. See : 1 Blashfleld, Instructions, and the several hundred cases there cited. 458 THE LAW OF WAIVER. right to have reviewed the ruling of the court refus- ing to submit such instruction, but he must, after such refusal, register a proper and timely exception, for without such exception he will be held to have waived any error of the court in its ruling and to have abandoned his request 86 . This is only another application of the general rule requiring a party dissatisfied with any ruling of the court to give notice of such dissatisfaction by means of his ex- ception, thereby indicating to the court and op- posing counsel that he intends to present the matter for review in a higher court 87 . Sec. 466. A party excepting to the ruling of a court refusing to submit an instruction must point out specifically the grounds upon which his excep- tion is based, for a general exception will be of no avail. And an exception made on one ground can- not on appeal be switched to some other, for the statement of one is a waiver of all others not called to the attention of the trial court, and such others will not be considered by the appellate court 88 . And 86. Bonino v. Caledonio, 144 Mass. 299 ; 11 N. B. 98. Thrasher v. Postel, 79 Wls. 503; 48 N. W. 600. Territory v. Caldwell, 14 N. Mex. 635; 98 Pac. 167. People v. Northey, 77 Cal. 618; 19 Pac. 865; 20 Pac. 12. Burns v. People, 126 111. 282 ; 18 N. B. 550. Kearney v. Smith, 47 Neb. 408; 66 N. W. 538. Poullain v. Poullain, 79 Ga. 11 ; 4 S. E. 92. Post v. Bird, 28 Fla. 1 ; 9 So. 888. Crane v. Schloss, 14 N. Y. Supp. 886. Cent. Vt. Ry. v. Soper, 59 Fed. 879. Du Souchett v. Dutcher, 113 Ind. 249; 15 N. E. 459. 87. Keeling v. Kuhn, 19 Kans. 441. Leahy v. So. Pac. Ry., 65 Cal. 151; 3 Pac. 622. East St. Louis Ry. v. Stout. 150 111. 9 ; 36 N. E. 96S. State v. Brewer, 70 la. 384 ; 30 N. W. 646. Stewart v. Murray, 92 Ind. 548. 88. Price v. Burlington Co., 42 la. 16. Sanford v. Gates, 38 Kans. 405 ; 16 Pac. 807. Phipps v. Pierce, 94 N. Car. 514. Cole v. Curtis, 16 Minn. 182. CIVIL PRACTICE. 459 it is obvious that the refusal of each separate in- struction must be properly except ed to, for an ex- ception to one necessarily raises no question as to another 89 . D. TIME FOE EXCEPTIONS: Sec. 467. The general rule being that any decision of the court in the trial of an action detrimental to a party must be objected to or excepted to by him at the earliest possible moment, which is usually at the time the ruling is made, it follows that where an objection- able instruction is given, or a requested one refused, exception must be taken to the giving or refusing at the tune, or any error in the court's ruling will be waived, unless by statute exceptions are rendered unnecessary; and even where such provision is made by statute, it is held that some kind of objec- tion must be presented to the court in apt time or error of the court cannot be urged on appeal 90 . The reason of the rule is the same as in all other invol- untary waivers a party having a right must take advantage of it, or if, being deprived of a right, must register a protest, or if, failing in either of these as the case may be, he will, as a matter of law, be deemed satisfied with the proceeding and cannot later object thereto. Sec. 468. Thus, while on appeal, in the absence of any showing to the contrary, it will be presumed that exceptions to instructions were taken in proper 89. Ryall v. Cent Pac. Ry., 76 Cal. 474; 18 Pac. 430. Columbia Co. v. Nat. Bank of Com., 62 Minn. 224 ; 53 N. W. 1061. Pound v. Port Huron Co., 54 Mich. 13 ; 19 N. W. 570. Jumper v. Com. Bank, 39 S. Car. 296 ; 17 S. B. 980. 90. City of Durango v. Luttrell, 18 Colo. 124; 31 Pac. 853. Moffatt v. Tenney, 17 Colo. 189; 30 Pac. 348. 460 THE LAW OP WAIVER. time 91 , if the record show that an exception was not taken until after verdict, the exception then taken will be too late and the party taking it will be held to have waived the court's error in the giving of the instruction 92 . And the same rule prevails where the exception is to the refusal of the court to in- struct 93 . And whether the exception be to the giv- ing or refusal of instructions, it is held that any er- ror of the court in the giving or refusal is waived if the exception be not taken until after the jury re- tire 94 , or until after part of the jury retire 95 ; and the same rule applies where the exception is not taken until after a verdict has been delivered into court 96 , or is taken for the first time in a motion for 91. Strlckenfaden v. Zipprlck, 49 111. 286. Wakeman v. Lyon, 9 Wend. 241 (N. T.). 92. Thiede v. Utah, 159 U. S. 510. State v. Hart, 116 N. Car. 976 ; 20 S. B. 1014. Bynum v. So. Pump Co., 63 Ala. 462. Barker v. Todd, 37 Minn. 370 ; 34 N. W. 895. Wustland v. Potterfield, 9 W. Va. 438. 93. Holtey v. State, 75 Ala. 20. State v. Debnam, 98 N. Car. 712 ; 3 S. B. 742. See: State v. Varner, 115 N. Car. 744; 20 S. B. 618. 94. Barnewall v. Murrell, 108 Ala. 366 ; 18 So. 831. Garoutte v. Williamson, 108 Cal. 135 ; 41 Pac. 13 and 413. City of Durango v. Luttrell, 18 Colo. 124; 31 Pac. 853. Gibson v. Sullivan, 18 Neb. 558; 26 N. W. 368. Schroeder v. Rinehard, 25 Neb. 75 ; 40 N. W. 593. Butler v. Cams, 37 Wls. 61. State v. Burk, 89 Mo. 635 ; 2 S. W. 10. Allen County v. Boyd, 31 Kans. 765 ; 3 Pac. 523. Gibson v. State, 26 Fla. 109 ; 7 So. 376. McDonald v. U. S., 63 Fed. 426. Barton v. Forsyth, 20 How. 532. Shepherd v. State, 36 Fla. 374; 18 So. 773. Dozier v. German, 30 Mo. 216. Branton v. O'Briant, 93 N. Car. 99. 95. Spooner v. Cuminings, 151 Mass. 313 ; 23 N. E. 839. . State v. Debnan, 98 N. Car. 712 ; 8 S. B. 742. State v. O'Donald, 4 Idaho 343 ; 29 Pac. 566. Wash. etc. v. Hobson, 15 Gratt. 122. Mich. Ins. Bank v. Eldred, 143 U. S. 293. Barker v. Todd, 37 Minn. 370; 34 N. W. 895. CIVIL PRACTICE. 461 a new trial 97 , or on appeal 98 . These rules are sup- planted in some states by statutory provisions, or at least modified in their application. Thus, in one state exceptions may be taken at any time before the entry of final judgment 99 , in another within three days after verdict 100 , in another at any time before verdict 1 , in another the exception may be taken in a motion for a new trial 2 . 8. VERDICT : Sec. 469. If a verdict as re- turned by a jury in the trial of a cause is unsatis- factory to either party for any reason, such party must make a proper and timely objection or the de- fect in the verdict will be held waived and the party precluded from questioning it on appeal as to any matters that could have been called to the attention of the trial court. The objection must be specific as to the matters or grounds rendering it defective, for a general or blanket objection will be insufficient to present any question for consideration 3 . The rule is the same whatever the objection to or defect in the verdict. Thus, upon appeal error cannot be predicated upon a defect in the form of the verdict unless an objection was made and the defect called to the attention of the trial court and an exception duly saved to the decision of the court overruling 97. State v. Myers, 99 Mo. 107; 12 S. W. 516. Louisville Co. v. Hart, 119 Ind. 273; 21 N. E. 753. Harrison v. Chappell, 84 N. Car. 258. Vanwey v. State, 41 Tex. 639. State v Halford, 104 N. Car. 874; 10 S. E. 524. 98. Pish v. Chicago Co., 81 la. 310 ; 46 N. W. 998. 99. Collins Ice Cream Co. v. Stephens, 189 111. 200; 59 N. E. 524. Uhe v. Chicago Co., 4 S. Dak. 505 ; 57 N. W. 484. 100. Maxon t>. Chicago Co., 67 la. 226 ; 25 N. W. 144. 1. Vaughn v. Ferral, 57 Ind. 182. 2. Barney v. Scherling, 40 Miss. 320. 3. Mahoney v. Van Winkle, 21 Cal. 553. Fickle v. St. Louis Co., 54 Mo. 219. 462 THE LAW OF WAIVER. the objection 4 , whether the verdict be general or spe- cial 5 . It has been held, however, that no exception is necessary 6 . The rule is equally applicable where the defects in a verdict are other than as to form, as where it is contrary to or not supported by the evidence 7 , or is inadequate 8 or excessive in amount 9 . 9. FINDINGS OF FACT : Sec. 470. Where findings of fact are made, if they be objectionable the party aggrieved must except to them in the court where they are filed, for without such excep- tion no review of the findings can be had on appeal ; this is consonant with the general rule requiring an exception for the review of any question by an ap- pellate tribunal, and without the exception, error is considered waived 10 . If an exception be not taken 4. Kuhlman v. Williams, 1 Okla. 136 ; 28 Pac. 867. Sternberger v. Bernheimer, 121 N. Y. 194; 24 N. E. 811. Ryan v. Fitzgerald, 87 Cal. 345 ; 25 Pac. 546. Ranlerson v. Rockner, 17 Pla. 809. Rawson v. Ellsworth, 13 Wash. 667 ; 43 Pac. 934. Greenfield v. State, 113 Ind. 597 ; 15 N. E. 241. Chapman v. White, 52 Mo. 179. McNally v. Weld, 30 Minn. 209 ; 14 N. W. 895. 5. Josephi v. Mady Clo. Co., 13 Mont. 195; 33 Pac. 1. Wright v. Mulvaney, 78 Wls. 89; 46 N. W. 1045. Mack v. Leedle, 78 la. 164; 42 N. W. 636. Baton v. Barnhill, 68 Miss. 305; 8 So. 849. Headley v. Renner, 129 Pa. St. 542; 18 Atl. 549. Roach v. Hulings, 16 Pet. 321 (U. S.). Johnson v. Visher, 96 Cal. 314; 31 Pac. 106. . French v. Hotchkiss, 60 111. App. 580. Halderman v. Birdsall, 14 Ind. 304. 7. Clapp v. Mass. Assoc., 146 Mass. 519 ; 16 N. E. 433. Schwinger v. Raymond, 105 N. T. 648 ; 11 N. E. 592. Couch v. Gentry, 113 Mo. 248 ; 20 S. W. 890. Smith v. Pearson, 44 Minn. 397 ; 46 N. W. 849. 8. West. N. Co. v. Va. Paper Co., 87 Va. 418; 12 S. E. 755. 9. Brower v. Town Co., 84 Ga. 219 ; 10 S. E. 629. Van Gorder v. Sherman, 81 la. 403; 46 N. W. 1087. Schmitz v. St. Louis Co., 119 Mo. 256; 24 S. W. 472. Flannagan v. Heath, 31 Neb. 776 ; 48 N. W. 904. !. Bassett v. Monte Christo, 15 Nev. 293. Verdler v. Blgn, 16 Oreg. 208; 19 Pec. 64. McLennan v. Prentice, 85 Wis. 427 ; 55 N. W. 764. Schoonover v. Condon, 12 Wash. 475 ; 41 Pac. 196. Packer v. Roberts, 140 111. 9; 29 N. E. 668. Abernathy v. Withers, 99 N. Car. 520; 6 S. E. 878. CIVIL PRACTICE. 463 in the trial court, the only question that can be raised on appeal is whether the findings are con- sistent with the judgment 11 . A waiver of error or defects in findings occurs by failure of the com- plaining party to except, whether the findings be unsupported by the evidence 12 , or there be an omis- sion to find as to an issue made by the pleadings 13 , or upon a particular question of fact 14 , or whether the findings be indefinite, uncertain and incom- plete 15 . 10. NEW TRIAL: Sec. 471. A motion for a new trial must set out the errors or irregularities constituting the grounds upon which a new trial is asked. These must be pointed out clearly and spe- cifically as the object or office of the motion is to call to the attention of the trial court in the first in- stance and to the appellate court on review the mat- ters relied on by the movant as error entitling him to another trial, to the end that the trial court may 11. Atch. Ry. Co. v. Scaggs, 64 Kans. 561 ; 67 Pac. 1103. Oallahan v. James, 141 Cal. 291 ; 74 Pac. 853. Upton v. Weisling, 8 Ariz. 298 ; 71 Pac. 917. First Nat B. v. Citiz. Bank, 11 Wyo. 32 ; 70 Pac. 726 ; 100 A. S. R. 925. U. S. Mtg. Co. v. Marquam, 41 Oreg. 391 ; 69 Pac. 37. Spencer v. Com. Co., 36 Wash. 374; 78 Pac. 914. Sankville v. Grafton, 68 Wis. 192; 31 N. W. 719. 12. Wagner v. Marht, 32 Wash. 542 ; 73 Pac. 675. Brand v. Merritt, 15 Colo. 286 ; 25 Pac. 175. Waterhouse v. Black, 87 la. 317; 54 N. W. 342. Tuomey v. Willman, 43 Neb. 28; 61 N. W. 126. Joyner v. Stancill, 108 N. Car. 153; 12 S. E. 912. Winterburn v. Chambers, 91 Cal. 170 ; 27 Pac. 658. Allen v. Hutchinson, 45 Wis. 259. Haws v. Victoria Co., 160 U. S. 303. 13. Merrill v. Chapman, 34 Cal. 251. Ashmead v. Reynolds, 134 Ind. 139; 33 N. E. 763. 14. Sharp v. Wright, 35 Barb. 236. Heroy v. Kerr, 8 Bosw. 194 ; 21 How. Pr. 409. 16. Tackaberry v. Bank, 85 Tex. 488 ; 22 S. W. 151 and 299. Cummings v. Rogers, 37 Minn. 317; 30 N. W. 892. State v. Mining Co., 4 Nev. 318. 464 THE LAW OF WAIVER. have an opportunity to correct its erroneous pro- ceedings, or that the appellate court may intelligent- ly pass upon the proceedings of the court below 16 . Any grounds that might have been set out but were not will be considered waived and cannot be urged either in the lower court or on appeal 17 . Sec. 472. If a party file a proper motion for a new trial and set out therein specifically and clearly all the grounds desired to be relied upon as error in the trial of the cause, he will yet be held to have waived not only his motion but any error of the court upon which his motion was predicated if he fail to except to the ruling of the court denying his motion. This is necessarily so under the general rule that an objection and exception in erroneous proceedings are complements of each other, in that each must be added to the other in order to form a complete record for review 18 . And in the case of a motion for a new trial, the motion itself is the ob- jection, and an adverse ruling thereon must be ex- cepted to or the movant will be held to have been 16. Powell v. Palmer, 45 Mo. App. 236. Lyons v. Van Gorder, 77 la. 600 ; 42 N. W. 500. Stewart v. Scott, 67 Ark. 153; 20 S. W. 10"''. Emery v. Real Est. Exc., 88 Ga. 321 ; 14 S. E. 566. 17. Miller v. State, 3 Wyo. 657; 29 Pac. 136. Hintz v. Granpner, 138 111. 159 ; 27 N. E. 935. Barney v. Scherling, 40 Miss. 320. Gray v. Gwinn, 30 Ind. 409. Territory v. Anderson, 4 N. M. 213 ; 13 Pac. 21. 18. Knop v. Ins. Co., 101 Mich. 359; 59 N. W. 653. Taylor v. Switzer, 110 Mo. 410; 19 S. W. 735. U. S. v. De Amador, 6 N. Mex. 173; 27 Pac. 488. Cogshall v. Spurry, 47 Kans. 448; 28 Pac. 154. Vaughn Lbr. Co. v. Mo. etc. Co., 3 Okla. 174; 41 Pac. 81. State v. Rollins, 31 W. Va. 363. Augusta Ry. v. Andrews, 89 Ga. 653 ; 16 S. E. 203. Moss v. Smith, 19 Ark. 683. Dan forth v. Lindell etc. Co., 123 Mo. 196; 27 S. W. 715. CIVIL PRACTICE. 465 satisfied with the ruling and to have acquiesced therein 19 . 11. WAIVER IN APPELLATE PEACTICE : Sec. 473. In the previous sections of this chapter we have considered the matters which will not re- ceive attention from an appellate court unless proper foundation is laid in the trial court by way of pleadings or proper and timely objections and exceptions to evidence or other matters of practice. It only remains to mention a few matters of prac- tice pertaining strictly to the appellate court. Sec. 474. Thus, it is necessary in order for a party to obtain a review of any alleged erroneous procedure that he should present to the court an as- signment of error specifying the grounds relied upon for a reversal. And unless the assignment is made, the appellee has the right to have the appeal dismissed. But to do this, he must move for the dismissal at the proper time ; for it is said that the objection that no assignment of errors has been made and filed on appeal, not raised until after argument in the appellate court, comes too late and must be held waived 20 . But the assign- ment of error must be made in accordance with the rules of court, and if not so made, will not be noticed by the court 21 . And even where the assign- ments are properly made the party assigning them must urge them in the appellate court, for by 19. Mausur v. Churchman, 84 Ind. 578. Fletcher v. Waring, 137 111. 159. Grady v. Jeftares, 25 Fla. 743; 6 So. 828. Roach v. Blakey, 89 Va. 767; 17 S. E. 228. State v. Boyce, 39 La. Ann. 229; 1 So. 450. 20. Smith v. Hill, 83 la. 684; 49 N. W. 1043; 32 A. S. R. 829. Andrews v. Burdick, 62 la. 714 ; 16 N. W. 275. 21. Martin v. Jackson, 27 Pa. St. 504; 67 A. D. 489. 466 THE LAW OF WAIVEB. failing to insist upon an assignment in argument before the court, he must be held to have waived it 22 . And an assignment properly made but not mentioned in appellant's brief will be held waived 23 . The assignment must contain all the errors relied on by appellant for reversal, for the appellate court will not notice errors not assigned. Sec. 475. Practically the whole effect of a waiver in matters of practice is to preclude a party from taking a different position in the su- perior court from that taken by him in the court below, or from taking advantage of some right on appeal that he had, by his conduct in the trial court, induced the court or the opposing party to believe would not be asserted by him. But there are matters to be noticed which constitute a bar to a party's right to appeal at all. A. WAIVER OF EIGHT TO APPEAL (1) FEOM CONSENT JUDGMENTS : Sec. 476. Parties to a civil action have the right to consent or agree to any kind of judgment they de- sire, provided no question of public policy is in- volved or the rights of third parties are not af- fected. And where such a judgment is entered, no question of fraud arising, any errors in the action theretofore existing are cured and the judgment ends all contention between the parties. After such consent, nothing remains for the court to do but to enter the judgment the parties have agreed upon, and the parties themselves are thereby pre- 22. Arnold v. Arnold, 124 Ala. 650; 27 So. 465; 82 A. S. R. 199. Ward v. Hood, 124 Ala. 570; 27 So. 245; 82 A. S. R. 205. 23. Johnson v. Schlosser, 146 Ind. 509 ; 45 N. E. 702 ; 36 L. R. A. 59. Ferguson v. Wilson, 122 Mich. 97; 80 N. W. 100G ; 80 A. S. R 543. Black v. Dawson, 82 Mich. 485 ; 46 N. W. 793. CIVIL PEACTICE. 467 eluded 24 . And from such judgment there is no ap- peal. The parties have by their consent waived any error and right to appeal 25 . And the same is true where the parties have stipulated that the judg- ment shall be final 26 . The reason is that in the ap- pellate court, as well as in the trial court, there must be some real issue or controversy, for where there is no controversy, there can be no appeal 27 . And where the controversy has been ended by any acts of the parties themselves, the right to appeal is waived 28 , as where the cause of action has been set- tled 29 . And where a party has the right to either prosecute a suit to review a judgment or to appeal therefrom, he waives the right to appeal by prose- cuting his suit to review 30 . (2) BY PAYING JUDGMENT : Sec. 477. There are cases holding that payment of judgment extinguishes it and that there is then nothing to appeal from. Consequently the holding of these 24. Rader v. Barr, 22 Oreg. 496; 29 Pac. 889. Schmidt v. Mining Co., 28 Oreg. 9 ; 40 Pac. 406 and 1016 ; 62 A. S. R. 759. Duncan v. Hartwell, 9 Tex. 495 ; 60 A. D. 176. Stephens v. Bicknell, 27 111. 444; 81 A. D. 242. 25. Schmidt v. Mining Co., 28 Oreg. 9 ; 40 Pac. 406 and 1016 ; 52 A. S. R. 759. Beach; Modern Eq. Pr. Sec. 795. Armstrong v. Cooper, 11 111. 540. 26. Townsend v. Stone Co., 15 N. Y. 587. 27. Little v. Bowers, 134 U. S. 547. Nunan v. Valentine, 83 Cal. 588 ; 23 Pac. 713. Treat v. Hiles, 77 Wis. 475; 44 N. W. 1088. State v. Westmoreland, 29 S. Car. 1 ; 6 S. E. 847. Hintrager v. Mahoney, 78 la. 537 ; 43 N. W. 522 ; 6 L. R. A. 50. 28. State v. Kans. City, etc., 97 Mo. 331; 10 S. W. 855. County v. So. Pac. Ry., 116 U. S. 138. 29. Monnett v. Hemphill, 110 Ind. 299 ; 11 N. E. 230. Wood, etc. v. Heft, 8 Wall. 333. Cartwright v. Howe, 1 How. 188 (U. S.). 30. Masonic Co. v. Commonwealth, 87 Ky. 349 ; 12 S. W. 145. New Orleans Co. v. Crescent Co., 33 La. Ann. 934. Harvey v. Fink, 111 Ind. 249 ; 12 N. E. 396. 468 THE LAW OF WAIVER. courts is that a voluntary payment of a judgment is a waiver of the right to appeal from it, and that an appeal taken or pending at the time of payment is void and may be dismissed on motion 31 . But these cases are not in line with the weight of authority which is to the effect that a judgment defendant does not waive his right to appeal by paying the judgment either before or after taking his appeal. It being immaterial whether such pay- ment is voluntary or after execution has been is- sued and served upon him 32 . A contrary rule would often result in injury to a judgment defend- ant, while the rule stated can produce injury to neither party. Sec. 478. Payment by a judgment defendant is often necessary in order to save his property from sacrifice, and what he does to save his prop- erty under a judgment should in no manner pre- clude him from attacking the judgment. As has been said: "Suppose a judgment has been ren- dered against a party and he cannot give security to supersede its enforcement while he prosecutes his appeal, and an execution is therefore issued, and his property is about to be sold under it his homestead, it may be. Now can it be claimed that if he shall pay off the judgment he is thereby de- prived of an appeal? Surely this cannot be the law" 33 . And this is the principle upon which the 31. State v. Conkling, 54 Kans. 108; 37 Pac. 992; 45 A. S. R. 270. Sager v. Moy, 15 R. I. 528 ; 9 Atl. 847. Morton v. Superior Court, 65 Cal. 496; 4 Pac. 489. 32. Grim v. Semple, 39 la. 570. Mayor, etc. v. Riker, 38 N. J. L. 225; 20 A. R. 386. Richeson v. Ryan, 14 111. 74 ; 56 A. D. 493. 2 Freeman, Judgments, Sec. 480a. Belton v. Smith, 45 Ind. 291. Hayes v. Nourse, 107 N. Y. 577; 14 N. E. 508; 1 A. S. R. 891. 33. Grim v. Semple, 39 la. 570. CIVIL PRACTICE. 469 doctrine is usually announced 34 . Thus, a party does not lose his right to appeal by complying with a decree in equity 35 , executing a conveyance in ac- cordance with a decree 36 , or by otherwise doing what the judgment or decree required. (3) BY ACCEPTING BENEFITS OF JUDGMENT : Sec. 479. A different rule obtains where an attempt to appeal is made by a judgment plaintiff. In such case, the rule is that a party who accepts the benefits of a judgment waives his right to appeal from it 37 . The reason is that when a judgment is satisfied it has passed beyond re- view; for the satisfaction thereof is the last act and end of the proceeding. Payment produces a permanent and irrevocable discharge; after which the judgment cannot be restored by any subsequent agreement nor kept on foot to cover new and dis- tinct engagements 38 . Sec. 480. But the rule is not without qualifi- cation and exceptions. Thus, it is said that the right to take an appeal is not waived by accepting 34. Factors Co. v- New Harbor Co., 37 La. Ann. 233. Bruce v. Smith, 44 Ind. 1. Edwards v. Perkens, 7 Oreg. 149. Kelly v. Bloom, 17 Abb. Pr. 229. Burrows v. Micklin, 22 Fla. 677. Chapman v. Button, 68 Wis. 657 ; 32 N. W. 683. 35. Peer v. Cookerow, 14 N. J. Eq. 361. County Com. v. Johnson, 21 Fla. 577. 36. O'Hara v. MacConnell, 93 TJ. S. 150. 37. Ullery v. Clark, 18 Pa. St. 148. McCracken v. Cabell, 120 Ind. 266; 22 N. E. 136. Smith v. Coleman, 77 Wis. 343; 46 N. W. 664. Stinson v. O'Neal, 32 La. Ann. 947. Paine v. Wooley, 80 Ky. 568. 38. Freeman on Judgments, Sec. 466. Cassell v. Fagin, 11 Mo. 208 ; 47 A. D. 151. Portland Co. v. O'Neil, 24 Oreg. 54 ; 32 Pac. 764. Bolen v. Cumby, 53 Ark. 514; 14 S. W. 926. Alexander v. Alexander, 104 N. Y. 643 ; 10 N. E. 37. 470 THE LAW OF WAIVER. payment of a judgment where the error in it re- spects the computation of interest and was not known to the plaintiff when he accepted pay- ment 89 . And it is stated that it is the possibility that the appeal by a plaintiff from a judgment of which he has received the benefits may lead to a result showing that he was not entitled to what he has received under the judgment appealed from that defeats his right to appeal; consequently, where there is no such possibility, his right to ap- peal is unaffected by acceptance of benefits under the judgment appealed from 40 . And if it is possi- ble for him to obtain a more favorable judgment in the appellate court without the risk of a less favorable one from a new trial of the whole case there or in the lower court, then the acceptance of what the judgment gives him is not inconsistent with an appeal for the sole purpose of securing, without a re-trial of the whole case, a decision more favorable to himself 41 . Sec. 481. The rule holding a judgment plain- tiff to have waived his right to appeal by accept- ing benefits under the judgment is equally applica- ble to cases where he sues out execution to enforce the judgment, for he thereby elects to take it as it 39. Jackson v. City, 182 Mass. 26; 64 N. E. 418; 94 A. S. R. 635. 40. Tyler v. Shea, 4 N. Dak. 377; 61 N. W. 468; 60 A. S. R. 660. citing : Reynes v. Dumont, 130 U. S. 354. Mellen v. Mellen, 137 N. Y. 606 ; 33 N. E. 545. Morrlss v. Garland, 78 Va. 215. Upton Mfg. Co. v. Hulske, 69 la. 557 ; 29 N. W. 621. 41. Id. And see: Monnett v. Merz, 131 N. Y. 646 ; 30 N. E. 866. Tarleton v. Goldthwaite, 23 Ala. 346 ; 58 A. D. 296. Meaders v. Gray, 60 Miss. 400 ; 45 A. R. 414. Clift v. Wade, 51 Tex. 15. CIVIL PRACTICE. 471 was rendered 42 . And a party cannot avail himself of the fruits of that part of a judgment favorable to him, and then by appeal seek to reverse such portions as militate against him 43 . The rules applicable to a judgment plaintiff attempting to appeal from a judgment of which he has accepted the benefits obtain with equal force where judgment was in favor of the defendant and he attempts to appeal therefrom. In such case he is held to have waived his right to appeal by en- forcing the provisions of the judgment 44 . B. NOTICE OF APPEAL: Sec. 482. One entitled to notice of appeal may waive such notice and submit the cause without it, or he may waive defects or irregularities in same. Where the ap- pellate court has jurisdiction of the subject-mat- ter, a voluntary appearance by the respondent, and taking steps in the appellate court constitute a waiver of mere irregularities in the service of no- tice of appeal 45 , and such irregularities are waived by a submission without objection 46 . But a sub- mission will not be a waiver where no notice at all was given 47 ; although it is said that an implied waiver of notice will be held where there is an ap- 42. Hall v. Lacy, 37 Pa. St 366. Knapp v. Brown, 45 N.. T. 207. 43. Holt v. Rees, 46 111. 181. Webster, etc. Co. v. St. Crolx Co., 71 Wls. 317 ; 36 N. W. 864. 44. Bennett v. Van Syckel, 13 N. T. 481. 45. Holden v. Haserodt, 2 S. Dak. 220 ; 49 N. W. 97. Cleveland Ry. v. Mara, 26 Oh. St. 185. Hohmann v. Eiterman, 83 111. 92. 46. Benson v. Carrier, 28 S. Car. 119 ; 5 S. E. 272. Guarantee Co. v. Buddin&ton, 23 Fla. 514 ; 2 So. 885. Richardson v. Green, 130 U. S. 104. Chicago Co. v. Abilene Co., 42 Kans. 104; 21 Pac. 1112. Cain v. Goda, 94 Ind. 555. 47. Burkam v. McElfresh, 88 Ind. 223. 472 THE LAW OF WAIVER. pearance and a brief upon the merits filed by the respondent 48 . 48. Bates v. Scott, 26 Mo. App. 428. Robertson v. O'Riley, 14 Colo. 441; 24 Pac. 660. Wilson v. Zeigler, 44 Tex. 657. Schmidt v. Wright, 88 Ind. 56. INDEX [References are to sections.] ABANDONMENT: Of Contract, entitled to compensation, 17. If willful, 17; 27. Of Right, without knowledge of the facts, 70. Waiver is voluntary, of right, 1. Of one remedy to follow another, 65. Of Contract, in rescission, 66. Of Execution, now waiver of chattel mortgage, 116. Of Mortgage, by execution, 123. Of Mortgage, hy taking other security, 126. by attachment, 127. by delay in enforcing, 128. Agreement for, of entry to foreclose, 139. Collateral security is, of mechanic's lien, 166. Of business, waives exemptions, 185. ABSCONDING: Of Maker of note, 78. ACCEPTANCE: Of Part Performance of contract, 12. Waiver right to object to performance, 12. Must be with knowledge of facts, 12. Knowledge imputed from circumstances, 12. Is waiver of defects, 12, 19, 21. Not a waiver if involuntary, 13, 14, 45. or of latent defects, 14. Of personal property after inspection, a waiver, 15. Damages not waived by, 15, 21. Renders liability fixed, 17. Under severable contract, liable 20. Of part payment as waiver of time, 40, 41, 45. waives right to rescind, 40. Failure of, of offer of arbitration, 42. Of tender, refusal on one ground, waiver of others, 47. Refusal of, tender not necessary, 47. Tender waived by, 50. Uncommunicated intention not to accept tender, 51. Of rent, by landlord, waives forfeiture, 53. Of benefit, waiver of breach of condition for support, 55. Of payment, waives forfeiture, 56. Of rent, waives default of tenant, 62. no waiver of future default, 63. Of rent from sub-lessee, 64. Of part of interest, by mortgagee, 132, 133, 134. Of surplus from foreclosure sale, 146. Whether, of note waives mechanic's lien, 158, 159, 162. note of a third person, 160, 162. of draft as waiver, 163. of mortgage as waiver, 164. Of payment of mortgage by conveyance, waiver redemption, 207. (473) 474 INDEX. [References are to sections.] ACTION: Right of, barred, 220. ACQUIESCENCE: By landlord, in delay in paying rent, 62. Rescission waived by, 70. Waives right to redeem, 211,212. Forfeiture of corporate shares waived by, 248. ACKNOWLEDGMENT : Of debt, as waiver of statute of limitations, 219. requisites of 220, 221. part payment as, 224. must be voluntary, 224. payment of interest as, 224. ADDITIONAL INSURANCE: Waiver of condition against, 273. Oral waiver of condition by agent, 299, 301, 302. Waived by treating policy as in force, 299. Consent to, endorsed on policy, 300. No objection by insurer, 301, 302. Silence of insurer, 301, 302, 303. Oral waiver, 302. Failing to endorse consent on policy, 303. to cancel policy, 303. Collecting premiums, 303. Failing to notify insured of forfeiture, 303. ADMISSION: (See: Evidence; Practice.) AGENT; AGENTS: Waiver may be by, 5. except of personal right, 6. Must have authority, 5. Mechanic's liens waived by, 171. Insurers must act by, 262. circumscribing powers of, 262, 263. general rules of agency applicable, 263. may waive conditions, 265. general and special, 266, 270. powers of, 266. knowledge of, is knowledge of insurer, 266. as agent of insured, 266, 267, 268. acts of, questioned by insurer, 266. held out as such by insurer, 267. who are, 269. what constitutes, 269. restrictions on authority of, 269, 270. officers as, 270. knowledge of insured of limitations on authority of, 271. whether clerks are, 272, 273. sub-agents, powers of, 272. countersigning policies, 272. ratifying act of sub-agent, 272. INDEX. 475 [References are to sections.] waiving acts prohibited by charter, 274, 275. knowledge of, as to title, 279. is knowledge of insurer, 281. failing to mention encumbrances, as waiver of condition, 282. knowledge of encumbrances, 282. of prior insurance, 287. of "iron-safe" provision, 289, 290. of change of title, 291, 292. of subsequent encumbrances, 295, 296. whether may waive mis-use of premises after delivery of policy, 297, 298. additional insurance, 299, 301. waived orally by, 301, 302. collection of premiums by, 304. waiving prepayment of, 304. by delivery of policy without collecting, 305. by giving credit, 305, 306. by custom, 306. by extending time, 308. by conduct, 308. by accepting past-due payment, 308, 309. authority of, to waive time of payment of premiums, 310, 311. to waive cash payment, 314. to endorse waiver on policy, 317, 318. to waive notice of loss, 321, 324. to waive proofs of loss, 325, 335, 336. to waive proofs orally, 337, 338. AGREEMENT; AGREEMENTS: Concurrent, to waive exemptions, 183. is against public policy, 183. by head of family, 183, 184. by single man, 184. to turn over exempt property, 186. In mortgage, to waive redemption, 200. Parol, to waive redemption, 209, 213. To waive statute of limitations, 216. ANSWER; ANSWERS: To merits, waives process, 353. Is appearance, 354. To contest merits, sufficient as appearance, 356. Waives service of process, 358. After objection to process, no waiver, 358. After overruling of demurrer, 373. held waiver of defects, 373. contra, 374. No waiver of mis-joinder of parties, 375, As waiver of objections to venue, 380, 381. 476 INDEX. [References are to sections.] APPEAL: Statute of frauds first raised on, 181. Defects in complaint not first raised on, 370. Mis-joinder of parties, first raised on, 375. Objections necessary for, of any matter, 426, 427. Special objection not permitted on, 432. exceptions to rule, 438. Questions raised on, without objection, 438. Exceptions essential to, 441. must specify ruling, 441, 442. to each ruling, 443. to exclusion of evidence, 443. must be specific, 443. when taken, 443. to admission of evidence, 444. to ruling on non-suit, 451. Instructions on, error in must be objected to, 457. oral, objection to 459. given, must be excepted to, 460. exception must point out defect, 461. general exception insufficient, 462. omitted, must be requested, 463. otherwise waived, 463. exceptions presumed on appeal, 468. taken after verdict, 468. Verdict, objection to, on, 469. Practice on, 473, et seq. assignment of errors to be filed, 474. without, appeal dismissed, 474. filing of assignment waived, 474. assignment not urged, waived, 474. not mentioned in brief, 474. must contain all errors, 474. Effect of waiver on, 475. Waiver of right to appeal, 476. from consent judgment, 476. After payment of judgment, 477. contra, 477. After complying with decree, 478. After accepting benefits of judgment, 479, 481. contra, 480. After issuing execution, 481. Notice of, waiver of, 482. defects in waived, 482. appearance waives, 482. filing brief waives, 482. APPEARANCE: Attorney not to enter, without authority, 6. Guardian cannot enter for infant, 10. General, waives process, 352. Waives defects in process, 353. Waives defects in service of process, 352, S63. Special, not a waiver, 353. Piling answer or demurrer is, 354. Must be real, 356. INDEX. 477 [References are to sections.] For contesting merits, sufficient, 356. Illustrations of, 357. After judgment, 359. Waives mis-nomer, 360. By attorney, 361, 365. Special, no waiver of process or defects, 362, 363. what is, 363, 364. Under protest, 364. Cannot confer jurisdiction over subject-matter, 367. By accused, gives jurisdiction over, 386. APPLICATION: (See: Insurance) For Insurance, provisions in, 266. making agent representative of insured, 266, 267. statements in unknown to applicant, 267. as to title, 279, 280, 281. oral, without disclosing encumbrances, 282. failure to disclose prior insurance, 287. ARBITRATION: Waived by failure to accept offer of, 42. Agreement for, waiving mechanic's liens, 170. As condition of recovery by insured, 339. May be waived by conduct, 339. by refusal to pay, 340. by denial of liability, 340. by refusing request for, 340. Cannot divest courts of jurisdiction, 369. ARREARS: Payments in, acceptance of, 40. Rent in, payment of, 54. Interest in, payment by indorser waives demand, 9(5. Right to foreclose, waived by payments of, 132. ASSESSMENTS: Not levied till conditions performed, 227. Payment of, waiver of conditions, 230, 232. What are, 245. Irregularities in, effect of, 245. waived, how 245. waiver by ratification, 245. participating in levying, 245. Forfeiture of shares for non-payment of, 246. waiver of by delay, 246. enforcing, waives right to sue, 247. irregularity in, waived, 248. by acquiescence, 248. ASSIGNMENT: Taking, by endorser waives demand and protest, 97, 99, lOi To endorser, between endorsement and maturity, 101. After maturity, 102. 478 INDEX. [References are to sections.] ASSIGNEE: Of mortgage, right to waive entry, 140. Of corporate shares, 249. Recognizing, by corporation, 256. ASSIGNMENT OF ERRORS: (See: APPEAL) ATTACHMENT: Waives right to rescind, 68. Of goods, waives fraud in sale of, 68. An affirmance of voidable contract, 68. Lien of chattel mortgage waived by, 112. Equity of redemption not subject to, 112. Of property in custody of law, 114. Mortgage held not waived by, 115. Of proceeds of sale of mortgaged property, 117. On real estate, waiver of mortgage, 127. Of goods, waives carrier's lien, 151. Whether waiver of mechanic's lien, 169. of vendor's lien, 174. Of exempt property, 185. Traversing, where property exempt, 186. Defects in affidavit, 382. fatal, if taken advantage of, 382. traversing, waiver of 382. Want of affidavit never waived, 382. Defects in writ, 383. must be set up by defendant, 383. appearance without objecting, a waiver, 383. waived by executing re-delivery bond, 383. contra, 383. other acts amounting to waiver of, 383. Lien of, between plaintiff and defendant, 384. irregularities in, 385. instances of waiver of, 385. ATTORNEY; ATTORNEYS: May waive client's rights if authorized, 6. Has full authority as to matters of practice, 8. Governed by rules of agency, 6. Merely representative in court, 6. Cannot enter appearance, 6. Cannot waive process for infants, 11. Lien of against judgment, for fees, 155. waived by taking other security, 155. not by delay in enforcing, 155. nor by taking note, 155. conduct amounting to waiver of, 156. And client, communications between, 191. by partner, 191. waived by conduct, 191, 192. by signing will, 192. by signing mortgage, 192. waiver of may be oral, 193. elient becoming witness, waives privilege, 195. INDEX. 479 [References are to sections.] May waive privilege of patient, between physician & patient, 196. Appearance by, sufficient to waive process, 361, 365. Cannot waive right of accused to be present at trial, 406. BILLS & NOTES: Waiver of presentment, protest and notice, 74. Indorsement implies knowledge of contents of instrument, 74. Waiver of presentment, etc. in endorsement, 75. after indorsement of instrument, 78. Waiver of presentment by asking time, 78, 84, 87. at maturity of instrument, 79. by admitting liability, 79, 80. New promise by endorser to pay, 81, 89. Failure of presentment, etc. no defense when waived, 82. Offer to pay part, unaccepted, 85. Knowledge of lack of presentment, presumed, 90, 91. Paying interest waives demand and protest, 96. Indorser of, taking security, 97 to 102. Consideration for waivers in, 104, et seq. Waivers in, statute of frauds affecting, 109. Mortgage secures, 118. Mechanic's liens, waiver of by taking, 158. Whether are collateral security, 167. As waiver of vendor's lien, 172, 173. Waiver of exemptions in, 184. BREACH: Of Contract, willful, no recovery, 19. recovery though willful, 17. Waived by proceeding under contract, 22, 56. As to time, waived by directing 'changes, 44. Of condition for future support, 55. Of condition subsequent, waiver of, 58. Once waived, not revived, 58. Of conditions in mortgages, 131, 132. for payment of interest, 132. Of condition, waived by delivery of policy of insurance, 277. by silence of insurer, 278. as to title, waived by delivery of policy, 279, 281, 291. against encumbrances, waiver by insurer, 282. by failure to make inquiry, 282. by agent's failing to mention, 282. by delivering policy, 282. by receipt of premiums, 282, 284. against vacancy, waiver of, 285. BUILDINGS: Acceptance, if involuntary, no waiver of defects in, 14, 15, 45. nor if defects not discoverable, 23. Time, in contracts for, waiver of, 43. BURDEN OF PROOF: Presumption shifts, 81. To show laches of holder, on endorser, 91. contra, 93. Of showing waiver of vendor's lien, on vendee, 174. 480 INDEX. [References are to sections.] BY-LAWS: What are, 239. Whether acts contrary to, void, 239. Waiver of, 239. by officers, 239. by insurer issuing policy, 239. Of insurer, waiver of, 276. CARRIERS: Have no property rights in goods carried, 149. Lien of, depends on possession, 148. lost by surrender of possession, 150. must be voluntary, 150. waived by conduct, 150. not lost by surrender of possession if conditional, 150. waived by attaching goods, 151. by levying execution, 151. by giving credit, 152. by taking security, 152. CHARTER: Right of state to cancel, 258, et seq. belongs exclusively to state, 258. upon breach of condition, 258. waived by permitting corporation to continue, 258. waiver of, question of intention, 258. illustrations of, 259, 260. cases where right not waived, 261. Of insurance company, 274, et seq., waiver of acts prohibited by, 274. acting contrary to, fraud, 275. CHATTEL MORTGAGES: Lien of, waived by attachment, 112, 114. inconsistent with attachment, 112. Legal title under, 112. By attachment of property In custody of law, 114. Lien held not lost by attachment, 115. Lien of, waived by levying execution, 116. not where execution abandoned, 116. Attachment of proceeds of sale of property, 117. Waiver of lien by attempted sale, 117. As waiver of mechanic's lien, 167. CLERKS: Of insurance agents, as agents of insurer, 272, et whether represent insurer, 272. without knowledge of insurer, 272. CLIENT: Communication between, and attorney, 191. waiver of by administrator, 191. may be waived orally, 193. becoming witness as waiver of, 195. INDEX. 481 [References are to sections.] COLLATERAL. SECURITY: Offer to give, no waiver of presentment and protest, 88. Taking, as waiver of mechanic's lien, 164, 166. intention of parties to govern, 166. not inconsistent with lien, 166. What is collateral security, 167. As waiver of vendor's lien, 172, 173. COMPETENCY: (See: Witness; Objection; Evidence.) COMPLAINT; COMPLAINTS: Defects in, to be insisted on by defendant, 370. otherwise waived, 370. raised by motion or demurrer, 370. not first raised on appeal, 370. not waived by demanding bill of particulars, 371. nor by failure to demur, 371. nor by submitting demurrer without argument, 371. waived by pleading to merits, 371. by answering after overruling of demurrer, 373. held waiver of defects, 373. contra, 374. COMMUNICATIONS, PRIVILEGED: Giving evidence of, 190. Between attorney and client, 191. waived by administrator, 191. by partner, 191. by conduct, 191, 192, 193. by signing will, 192. by signing mortgage, 192. waiver of, may be oral, 193. facts amounting to, 194. client becoming witness, 195. Between physician and patient, 196. waiver of, by attorney, 196. by assignee, 196. by heir-at-law, 196. by guardian, 196. waived by implication, 197. calling physician as witness, 197. failing to object to testimony, 197. patient testifying, 197. waived by other acts, 197. Between husband and wife, 198. statutory provisions for, 198. waiver by acts of parties, 198. CONDITION; CONDITIONS: Breach of, for support, 55. Promise on, must be accepted, 85. Breach of, in mortgage, 131. by failing to pay interest, 132. Subscriptions to corporation on, 227. no liability on, till performed, 227. waived by subscriber, 228. 482 INDEX. [References are to sections.] by silence, 228. by conduct, 230, 232. by subscribing prior to incorporation, 230. by paying for, 230, 232f by part payment for, 231, 232. In Insurance contracts, 264, et seq. waiver of, forbidden, 264. agents may waive, 265, 266, 270. wbetber clerks of agents may waive, 272. officers, power of to waive, 270. sub-agents, powers of, 272. waiver of, against additional insurance, 273. breach of, prior to delivery of policy, 277. waived by delivering policy, 277. by silence of insurer, 278. as to title, waiver of by insurer, 279, 291, 292. by delivering policy, 279, 280. by other conduct, 291. as to encumbrances, waiver of by insurer, 282. by failing to inquire, 282. by agent's failure to mention, 282, 284. by agent's advising not to mention, 282. by issuing policy, 282, 284. by receipt of premiums, 282. as to vacancy of house, knowledge of, 285. delivering policy waives, 285. as to use of premises, waiver of, 286. waived by delivering policy, 286. as to prior insurance, waived by conduct, 287. knowledge of by agent, 287, 288. waived by taking premiums, 287, 288. by delivering policy, 287, 288. renders policy voidable, 287. as to "iron-safe" requirement, 289, 290. breach known by agent, 289. waived by delivering policy, 289. by other conduct. 289, 290. by acquiesence, 290. as to vacancy, after delivery of policy, 293. whether waived by an agent, 293. endorsing consent on policy, 293, 294. not waived by silence, 294. as to encumbrances, after delivery of policy, 295, 296. waived by assent or conduct, 295, 296. mis-use of premises subsequent to issue of policy, 297, 298. not waived by silence of agent, 297, 298. nor failure to cancel policy, 297. additional insurance, waiver by agent, 299, 301. by treating policy as still in force, 299, 302. consent indorsed on policy, 300. silence of insurer, 301, 302, 303. oral waiver, 302. failure to cancel policy, 303. collecting premiums, 303. forfeitures for breach of conditions, 315. See: Premiums. INDEX. 483 [References are to sections.] CONDITIONAL SALE: Of goods, waived by delivery without payment, 32, 33. Title waived by giving credit, 34. CONDITION PRECEDENT: Strict performance, to payment, 18. Payment as, to passing title, 33. Waived by giving credit, 34. Arbitration as, waived, 42. CONDITIONS SUBSEQUENT: Breach of, waived, 58. By treating contract as in force after breach, 68. Once waived, not revived, 58. Breach of, waived by laches, 59. No liquor to be sold on premises, 59. Payment of rent by certain time, 60. Breach of by tenant, landlord must act promptly, 60. Permitting tenant to hold over, no waiver of breach of, 60. Breach of, does not ipso facto terminate lease, 61. Breach of, not waived by lease to another, 61. Breach of, waived by accepting rent, 62. not by receiving rent from assignee, 63. not by accepting payment after a breach, 63. For payment of taxes by tenant, 63. CONDUCT: Intention to waive time, shown by, 45. If compulsory, no waiver, 45. Tender, waiver of shown by, 46. Showing tender would be refused, 47. Mis-leading, waives forfeitures, 52, 54. Of railroad, waiving forfeitures, 53. Waiver may be by, 1. Intention inferred from, 2. Inconsistent, waiver by in bills and notes, 72. Waiver implied from, 73. Waiving presentment, protest, etc., 80, 81. Of endorser, legal presumption from, 81. Inconsistent, by mortgagee, waives lien, 123. waives breach of condition, 131. non-payment of interest, 132. Waiving entry to foreclose, 137. foreclosure sale, 141. Waiving carrier's lien, 150. Waiver of mechanic's lien by, 157, et seq. Statute of frauds, waived by, 176. Waiver of exemptions by, 185, et seq. subsequent to making of debt, 185. Waiver of privileged communications by, 191. Waiver by, of redemption, 213. of statute of limitations, 216. of conditions in subscriptions to stock, 230, 232. of defects in subscriptions, 235. of irregularities in transfer of shares, 252. 484 INDEX. [References are to sections.] CONFIDENTIAL COMMUNICATIONS: Giving evidence of, waiver by, 190. Between attorney and client, 191. Waiver by administrator of client, 191. by partner, 191. by conduct, 191. by signing will, 192. by signing mortgage, 192. Waiver of may be oral, 193. Facts waiving, 194. Client becoming witness, 195. Between physical and patient, 196. waived by attorney, 196. by assignee, 196. by heir-at-law, 196. by guardian, 196. waiver of, by implication, 197. calling physician as witness, 197. failing to object, 197. patient testifying, 197. waived by other acts, 197. Between husband and wife, 198. statutory provision for, 198. waived by testifying, 198. by failing to object, 198. by other acts, 198. CONSIDERATION: Must be restored In rescission, 66. None essential to waiver, 4. In executory promise, 4. For waiver in bills and notes, 104. none necessary, 104. necessary if waiver after execution, 105. For promise of endorser, to pay after discharge, 109. For waiver of redemption, 206. must be, 208, 213. Whether, to waive statute of limitations, 216. CONSTITUTION: May prohibit waiver of exemptions, 182. Guarantees jury trial, 394. Prohibits second jeopardy, 389. Jury trial not guaranteed by, in misdemeanors, 398. Accused, protection of from self-crimination, 399. Guarantees accused right to be present at trial, 404. CONTRACTS: Executory, defects in waived by acceptance, 15. Substantial performance of, 16. Abandonment of, entitled to compensation, 17. if abandonment willful, 17, 27. Default in caused by other party, no liability, 27. Refusal to perform, 17. Proceeding under, after breach, 22. waiver, if with knowledge, 23. INDEX. 485 [References are to sections.] Preventing performance, a waiver, 25, 43. contractor entitled to recover, 25. Refunding payments received under, 26. Impossibility of performance caused by one party, other not liable, 28. Demanding illegal performance, is prevention, 29. or rendering self unable to perform, 29. Refusing to treat contract as subsisting, 30. refusal must be unequivocal, 31. and acted on by other party, 31. Time, as essence of, 35. not in equity, 36, 37. is, when so intended, 37. may be waived, 39. by part payment under contract, 40. accepting part payment over-due, 40, 41. waived, if delay caused by other party, 43. Right to rescind, waived by acceptance, 40. by extending time, 42. Forfeiture under, is waived by acceptance, 40. where not insisted on, 43. Delay in performance caused by contractee, 44. Breach of condition for future support, 56. Induced by fraud, 65. Action to enforce, waives rescission, 67. Judgment on, waives fraud in, 67. Voidable, waiver of, 68. Proceeding under, waives right to rescind, 69, 71. Receipts under, to be returned on rescission, 71. Of infants, 8. Infant must avoid in reasonable time, 8. Of indorsement, 75. Oral, pleading, 177, 178, 179. Proof of, 177, 179. Concurrent, to waive exemptions, 183. against public policy, 183. by single man, 184. In mortgage, to waive redemption, 200. Parol, to waive right to redeem, 209, 213. Of subscription to shares of corporation, 227, et seq., fraud in, renders voidable, 237. ratified by acquiescence, 237. Of Insurance: (See: Insurance.) Right to sue in tort or on implied, 343, 349, 350. choice of one waives other, 343. only where property converted into money, 343. Fraud in, waiver of, 345. Deceit in, waiver of, 346. Election between, and tort, shown only by pleadings, 361. Election between, and tort, results of, 351. Plea of infancy in suits on, 351. CONTRADICTORY: Positions, not allowable, 65. by mortgagee, 123. 486 INDEX. [References are to sections.] CONVERSION: May waive tort, and sue for value in, 348, 349. if property changed to money, 348. CONVEYANCE: Of property, as waiver of exemptions, 185. Absolute, but mortgage in fact, redemption from, 203. To mortgagee, waives right to redeem, 207. CORPORATIONS: Shares in, conditions in issue of, 227. Conditions in shares waived by subscriber, 228, et seq. must be with knowledge of rights, 228. may be by silence, 228. by conduct, 230. by subscribing prior to incorporation, 230. by paying calls, 230, 232. by part payment, 231, 232. by waiving notice of meeting, 231. Fraud in subscriptions to, 233. Waiver of defects in subscriptions to, 235. irregularities in, 236. Fraud makes subscriptions voidable, 237. waived by acquiescence, 237. by other acts, 238. What are by-laws of, 239. waiver of, 239. by officers, 239. Meetings of, to be regularly called, 241. irregularities in, may be waived, 242. must be by all members, 242. waived by attendence, 242. by subsequent ratification, 242. notice of, cannot be waived, 243. contra, 244. Assessments of, what are, 245. irregularities in, effect of, 245. waived, how, 245. by ratification, 245. by participating in levying, 245. Forfeiture of shares for non-payment, 246. waiver of, by delay in enforcing, 246. enforcing, waives right to sue, 247. Irregularity in enforcing, waived, 248. by acquiescence, 248. Stock in, transfer of, must be on books, 249. powers of assignor and assignee, 249. irregularities in, waived by corporation, 250. by recognizing assignee, 250, 251. where legal title rests, 251. consent of directors to, 252. Lien on shares, how created, 253. is waived if not asserted, 253, 254. purchaser ignorant of, 254. not waived by taking security, 254. INDEX. 487 [References are to sections.! by looking to personal liability of holder, 264. certificate reciting fully paid, 255. certificate should show lien, 256. corporation bound by certificate, 256. registration waives lien, 257. waived by giving credit, 257. Charter of, right of state to forfeit, 258. waiver of right, 258. Illustrations of waiver, 259, 260. cases where right not waived, 261. CRIMES; CRIMINAL LAW: Plea of not guilty, statute of limitation relied on under, 226. Statute of limitation, raised by special plea, 226. waived unless taken advantage of on trial, 226. and before verdict, 226. Jurisdiction over accused, given by appearance, 386. waived by pleas, 386. Extradition, waived, 387. Indictment stating no offense, 388. cannot be waived by accused, 388. Second jeopardy, constitutional guaranty against, 389. asserted by special plea, or waived, 389. not defense under general denial, 389. new trial is waiver of, 390. moving to set aside verdict, 390. fraud in first trial, 392. waives plea of, 392. Right to jury trial, 394, et seq. may be waived in misdeameanors, 394. not in felonies, 394. not entitled to at common law, 394. number of jurors, 396, et seq. in felonies, 397. cannot be waived, 397. nor consented to, 397. Self-crimination, 399, et seq. privilege not a bar to testifying, 399. waived by testifying, 399. how far a waiver, 400, 401. cross-examination of accused, 400, 401. Right of accused to be present at trial, 403, et seq. crimes less than capital, 404. right may be waived, 404. waived by voluntary absence, 404. in capital offenses, 405. right cannnot be waived, 405. attorney cannot waive right for accused, 406. CRIMINATION OF SELF: Constitutional protection of, 399. not a bar to testifying, 399. Privilege waived by testifying, 399. how far waived, 400. cross-examination of accused, how far, 400, 401. accused treated same as other witnesses, 402. 488 INDEX. [References are to sections.] By witness, 420, et seq. what is privilege, 420. answers having tendency to criminate, 420. privilege must be claimed, 421, 423. when to be claimed, 422. whether attorney may claim, 423. extent of waiver of, 424. testifying before grand jury as waiver of, 425. before coroner's inquest, 425. CROSS-EXAMINATION : Of accused, how far, 400. Not waiver of incompetency of witness, 419. CUSTOM: Waiver by, of presentment and protest, 73. of defects in transfer of shares in corporation, 252. Lien on shares of corporation created by, 253. To receive payment of premiums after maturity, 312, 313. DAMAGES: Not waived by accepting defective machinery, 15, 23. May be recovered for defects discovered after acceptance, 15. For incomplete performance, 17. After acceptance of defective articles, 21. Not waived where objection made at time of acceptance, 21. Waived, if inspection would disclose defects, 22. Not recovered where performance prevented, 25. Contractor prevented from performing may recover special, 26. Liquidated, not liable if other party to blame for default, 43. Waived, where time waived, 44. From fraud, 66. Waived, by ratification of fraudulent contract, 66. unless fraud is unknown, 66. Not waived by rescission, 67. nor by sale of part of property, 71. For false representations, not waived by keeping property, 345. DECEIT: Not waived by accepting payment of note, 345. How waived, 346. Action for, though contract performed, 347. DEED: Executing, waives forfeiture in land contract, 56. Condition subsequent in, breach of, waived, 58. Absolute in form, but mortgage in fact, 129. agreement in, to waive redemption, 201, 202. Of trust, right to redeem from, 204. DEFAULT: Under contract, waiver of, 22, et seq. by proceeding after, 22, 24. must be with knowledge, 23. Waiver of, a question of intent, 24. Caused by other party, no liability, 27. INDEX. 489 [References are to sections.] In payment for goods delivered, 34. Party not In, entitled to damages, 38. In performance of contract, waiver of, 39. Waived by proceeding after time limit, 39. by permitting other party to continue, 40. Waived where performance prevented by other party, 43. One party to blame for, other not liable to damages, 43. Proceeding after, waiver of, 56. In payment, waived, 56. Delay in giving notice after, no waiver, 57. Of tenant, not waived by landlord, 61. In payment of rent, waived by acquiescence, 62. Future, not waived, 63. Judgment by, against infant, 18. Not waived by unaccepted offer, 86. Of holder of note or bill, not waived by endorser without knowledge of facts, 88, 89. waived by payment, 95. Of mortgagor, in paying interest, 131, 132. Of mortgagor, waived by conduct of mortgagee, 132, et seq. Of mortgagor, in paying taxes or insurance, 135. Judgment by, waives exemption from service, 366. DEFECTS: In performance of contract, 12, et seq. must be discoverable from inspection, 12. must be diligent to discover, 12. not waived by acceptance if involuntary, 13. Visible, waived by acceptance, 15. Latent, not waived by acceptance, 15, 23. nor by occupancy of building, 15. Not objected to, waived, 22. In foreclosure sale, waiver of, 145, et seq. In subscription to stock of corporation, waiver of, 235. In notice of loss under insurance policy, waived, 323. In proofs of loss, waived, 329. by objection on other grounds, 329. In process, waiver of, 353. Appearance, to waive, must be actual, 356. Illustrations of appearance waiving, 357, 359. In process, waived by going to trial, 358. waived after judgment, 359. not waived by special appearance, 362, 363, 364. In complaint, must be insisted on by defendant, 370. otherwise waived, 370. In attachment proceedings: See: Attachment. DEFENSE: Failure of presentment no, where waived, 82. Of statute of frauds, personal to defendant, 177, 178, 179. must be pleaded by defendant, 178. Statute of frauds as, on cross-bill, 181. DEFENDANT: Statute of frauds to be proved by, 177. to be pleaded by, 177, 178, 181. 490 INDEX. [References are to sections.] Limitations, statute of, must be pleaded by, 225. May waive process, 352. General appearance of, See: Appearance. Ignorant of defects in process, 354. Process not waived by special appearance of, 364. Answering after overruling of demurrer, 373. held waiver of defects, 373. contra, 374. Mis-joinder, not waived by answering, 375. Waiver by, of objections to venue, 379. Jurisdiction over, in criminal prosecutions, 386. waived by appearance or plea, 386. Cannot waive jurisdiction over offense, 386. Waiver of extradition by, 387. Cannot waive failure of indictment to state offense, 388. Not compelled to criminate self, 399. privilege waived by taking stand, 399. how far waiver extends, 400, 401. treated same as other witnesses, 402. In criminal case, right to be present at trial, 403. waiver of right, 404. in capital offenses, 405. attorney cannot waive right for, 406. DELAY: Party not liable for, if other to blame, 43, 44. In action on insurance policy, 43. In claiming forfeiture, waiver of, 55. In giving notice after default, no waiver, 57. In paying rent, acquiesced in by landlord, 62. In rescission, fatal, 70. Request for, waiver by endorser, 83. In enforcing mortgage, 128. By attorney, no waiver of lien for fee, 155. In claiming exemptions, as waiver of right, 185. In redeeming, waives right, 210, 212. DELIVERY: Of goods, payment for on, waived, 32. by absolute delivery, 32. seller must demand payment, 32. Not to pass title on, until payment made, 33. Default in payment on, waived, 34. Of policy with knowledge of invalidity, a fraud, 277. waives breach of condition as to title, 279, 281. as to encumbrances, 282, 284. as to vacancy, 285. as to use of premises, 286. as to pre-payment of premium, 306, 307. DEMURRER: Right to general, not waived, 371. by failure to demur, 371. failing to argue demurrer, 371. Ground of general, cannot be waived, 371. Waived by failure to submit, 372. INDEX. 491 [References are to sections.] Filing answer after overruling of, 373. Held waiver of defects, 373. Error in overruling, 378. waived by amending pleading, 378. by offer to amend, 378. To evidence, 452, et seq. waived by introducing evidence, 453. When taken, 453. Must be exception to ruling on, 454. DENIAL OF LIABILITY: By maker of note, no waiver of demand, 87. By insurer, waives proof of loss, 325. on other grounds, 326. waives right of arbitration, 340. DEPOSITIONS: Statutory requirements as to, 417. Must be on notice, 417. Defective or lack of notice, waived, 417. by participating in taking of, 417. by cross-examining witness, 417. Defects in waived, unless motion to suppress be filed, 417. Objection to, must be made when taken, 418, waiver by other facts, 418. DISAFFIRMANCE : Rights to, under fraudulent contract, 68. Act of, conclusive, 68. Attachment, an affirmance of contract, 68. held a disaffirmance, 68. Of contract, by infant, 8. must be in reasonable time, 8. Of voidable subscription to stock in corporation, 238. Of act of tort-feasor, 343. DITCHES: Acceptance of, no waiver of defects in, 14. DRAFT: Drawing, as waiver of mechanic's lien, 163. EJECTMENT: Brought to enforce forfeiture, 58. ELECTION: To affirm sale, waives right to re-take goods delivered, 65. Complement of waiver, 65. Of one remedy, waives others, 65, 68. Of infant, waives right to avoid, 8. To attach, waives mortgage lien, 112. Of remedies, under mortgage, 118, 119. To take personal liability, waives carrier's Hen, 150. Between attachment and mechanic's lien, 169. To claim exemptions, 186. To ignore statute of limitations, 216. To forfeit shares, waives right to sue, 247. 492 INDEX. [References are to sections.] Between tort and implied contract, 343. To affirm tort, irrevocable, 344. Of remedies, 347. To sue for conversion, instead of value of goods, 348. illustrations of, 350. Indicated only by pleadings, 351. ENCUMBRANCES: Application for insurance failing to disclose, 282. Waiver by insurer's failing to inquire, 282. by agent's failing to mention, 282. by agent's advising not to mention, 282, 284. by delivering policy, 282, 284. by receipt of premiums, 282. knowledge by insured, of false answer, 283. Subsequent to deliver of policy of insurance, 295, 296. waived by assent or conduct, 295, 296. ENTRY TO FORECLOSE: Waived by conduct, 137. Not waived by release of judgment, 138. Waived by judgment at law, 138. by extension of time, 139. by agreement to re-convey, 139. Waiver of must be by holder of mortgage, 140. EQUITY OF REDEMPTION: Not attachable, 112. Levy of execution on, 121. Sale of, 121, 124. Cannot be waived in mortgage, 199, 200, 201. even though such be intention, 200. in deed as mortgage, 201. By separate instrument, 202, 204. In absolute conveyance, 203. In deed of trust, 204. Waived by agreement after mortgage, 205, 206, 207, 208. must be voluntary, 206. by conveyance to mortgagee, 207. by parol agreement, 209. statute of frauds affecting, 209. Is equitable right, 210. Must be exercised in reasonable time, 210, 213. Time for, provided by statute, 211. Lost by laches, 212. by other conduct, 213. Must be consideration for waiver of, 208, 213. with knowledge, 214. EQUITY: Forfeitures not favored In, 52. Deed considered as mortgage, 201. Redemption, right in, 209. ESTOPPEL: Waiver by, 3, 91. INDEX. [References are to sections.] EVIDENCE: Of promise to pay by endorser, 90. Presumptive of notice, 90, 91. Prima facie, of demand and protest, 96. Prime facie, of payment of note, 159. Privilege from giving, 190. between attorney and client, 191. Objection to inadmissible, when offered, necessary, 427. when taken, 428. when too late, 428. to parol, 428, 433. to secondary, 429. to documentary, 429. to incompetent, 430. variance from pleadings, 429, 433. Specifying, in objection, 431. General objection to, on trial, waives special on appeal, 432, 436, 437. where part of evidence admissible, 432. Objection for incompetency of, 433. waives other grounds of objection, 433. Objection to as incompetent, irrelevant and immaterial, 434. evidence partly admissible, 435. where admissible for any purpose, 436. waives objection to competency of witness, 437. other objections, 437. Exceptions to foregoing rules, 438. Objections waived if abandoned, 439. illustrations of such waiver, 439. Variance of, from pleadings, 440. excluded on motion, 440. must be objected to in lower court, 440. objection on other grounds, 440. when objection to be made, 440. Exclusion of, must be excepted to, 444. time for exception, 444, 445. exceptions must specify grounds, 444, 445. Insufficiency of, to sustain verdict, 447. Introducing, as waiver of right to non-suit, 448, 449. Demurrer to, 452. waived by introducing evidence, 453. when taken, 453. exception must be taken to ruling on, 454. EXCEPTION; EXCEPTIONS: To ruling on objection to incompetent witness, 419. To any ruling, essential to appeal, 426. Must follow overruling of objection, 441, 446. Must specify ruling objected to, 441. Must be to each ruling, 442, 443. To exclusion of evidence, 443. when taken, 443. must be specific, 443. To admission of evidence, 444, 445. time for, 444, 445. must specify grounds, 444, 445. To competency of witness, 446. 494 INDEX. [References are to sections.] To order of proof, 446. To ruling on motion for non-suit, 451. To ruling on demurrer to evidence, 454. To instructions, giving of, 460. must follow objection, 460. form of, 460. must point out defects, 461. what waived, 462. To refusal to instruct, 465. error waived without, 465. error must be pointed out in, 466. On one ground, waives others, 466. Time for, 467. Statutory provision as to, 457. To findings of fact, 470. EXCLUSION: (See: Evidence; Exceptions; Practice) EXECUTION: Levy of, waives lien of chattel mortgage, 116. not where property exempt, 116. not where execution abandoned, 116. No waiver of lien of real estate mortgage, 119, 120. on mortgaged premises, 121. 122, 123. on equity of redemption, 121. On goods, waives carrier's lien, 151. As waiver of mechanic's lien, 169. of vendor's lien, 174. Levy of, on exempt property, 185. EXEMPTIONS: Whether can be waived, 182. Are for debtor's family, 182. May be waived unless prohibited by constitution, 182. Whether waived by concurrent agreement, 183. against public policy, 183. debtor must be head of family, 184. by single man, 184. For benefit of poor and needy, 184. Waiver of in note, 184. in confession of judgment, 184. to pay debt from insurance, 184. Waiver by conduct, 185, et seq. after agreement, 185. by inconsistent conduct, 185. Must be claimed in reasonable time, 185. Pledge as waiver of, 185. Abandonment of business as waiver of, 185. By conveyance of property, 185. Waived by laches, 185. Of partners, 185. Not waived by failure to claim till sale of property, 188. Failing to elect between, 186. Directing levy on certain property, 186. Traversing attachment on other grounds, 18C. INDEX. 495 [References are to sections.] Agreement to turn over other property, 186. Receipting officer for goods, 186. Homestead, 187, 188. Need not be claimed, 188, 189. Wife may claim, 188. Not divested by judgment, 189. Plea of, in judgment in tort, 351. From service of process, 366. who are exempt, 366, 368. right must be claimed, 366, 368. waived if not claimed, 366. by permitting default judgment, 366. By entering appearance, 366. FACTS: Knowledge of, essential, 66. Avoiding contract, 68. What is reasonable time, depends on, 70. Knowledge in presentment and protest, 73. necessary for waiver by endorser, 88, 89. In entry to foreclose mortgage, 137. foreclosure sale, 142. Knowledge of essential to set aside foreclosure sale, 144. FALSE REPRESENTATIONS: By mortgagee, waives priority, 129. Retaining property after discovering, 345. That mortgage is prior lien, 345. FELONIES: (See, Crimes; Criminal Law.) FINDINGS OF FACT: Defects in, must be objected to, 470. Exceptions to, 470. FORECLOSURES: Only remedy under mortgage, 121. Waiver of right, 131. by extension of time, 132. For non-payment of interest, 132, 133. of part of principal, 134. of taxes or insurance, 135. From failure to pay part of principal, 136. Entry for, waived by conduct, 137. not by release of judgment, 138. Possession is form of, 138. Waived, by judgment at law, 138. Entry for, waived by other conduct, 139. Waiver of must be by holder, 140. Sale under, waiver of by agreement, 141. by extension of time, 141. irregularities in waived by redemption, 145. 496 INDEX. [References are to sections.] FORFEITURES: Waived by acceptance of payment, 40, 45. Waived where not insisted on, 43. Not favored at law or in equity, 52. Is financial punishment, 52. Party cannot claim, if caused by his own act, 52. Benefit of, may be waived, 52. Slight acts show waiver of, 53. Waived by silence of landlord, 54. Waived prior to accrual of right to, 54. Delay in claiming, waiver of, 55. Waived unless contract rescinded promptly, 56. by extending time of payment, 56, by proceeding after default, 56. Waived by suing for specific performance, 56. In land contract, waived by executing deed, 56. Waived by implication, 56. by transferring purchase notes, 56. Vendor accounting with vendee, waives, 57. In deed, waived, unless entry made, 58. Not waived by failure of formal act, 59. For sale of liquor on premises, 59. Not waived by permitting tenant to hold over, 60. Tenant liable to, cannot set up own default, 61. Landlord waives by accepting rent, 62. by acquiescence in delayed payment of rent, 63. Not waived by accepting rent after notice to quit, 63. For future breach, not waived by accepting rent, 63. Must be claimed during term of lease, 63. Declared, if tenant sub-lets, 64. Waiver of, by taking rent from sub-lessee, 64. Waiver of in mortgages, 132, et seq. For non-payment of interest, waived by extension of time, 132. insurance or taxes, 135. Of shares in corporation, right conferred only by statute, 246. waived by delay in declaring, 246. enforcing, waives right to sue, 247. irregularity in, waived, 248. Of charter, by corporation, 258. et seq. waived by permitting corporation to continue, 258. illustrations of waiver of, 259, 260. In insurance contracts, 266. waived by agents of insurer, 266. of policy, by change in title, 291. by subsequent encumbrances, 295. for mis-use of premises, 297. for additional insurance, waiver of, 299. by treating policy as in force, 299. for non-payment of premiums, 306, 308. waived by recognizing policy, 315. for breach of condition in, 315. waived by failing to cancel policy, 315. knowledge of agent imputed to insurer, 316. for failure to give notice of loss, 319. INDEX. 497 [References are to sections.] FORMALITIES: Of tender, waived, 47. Of presentment and notice, necessary, 72, 76. Waived by agreement or conduct, 72. Proof of waiver is equivalent to, 73. Of presentment, etc., waived orally at maturity, 79. by conduct, of endorser, 110. Of transfer of shares in corporation, waived, 250, 252. FORMER JEOPARDY: Constitutional right, 389. Asserted by special plea, or waived, 389. Not a defense under general issue, 389. New trial is waiver of, 390. Moving to set aside verdict, 390. Fraud in first trial, 392. waives plea of, 392. FRAUD: Contract induced by, 66. Knowledge of, essential to rescission, 66. Damages may be had for, 66. Waived, by action to enforce contract, 67. by recovering judgment, 67. Continuing under contract after knowledge of, 71. By endorser of bill or note, 91. By mortgagee, as waiver of lien of mortgage, 129. in foreclosure sale, 142. By guest, in obtaining possession of goods from inn-keeper, 153. In waiver of redemption, 206, 208. In subscription to stock of corporation, 233, et seq. makes voidable, 237. waived by acquiescence, 237. by other acts, 238. Of insurer, in acting contrary to charter, 275. in delivering policy with knowledge of its invalidity, 277. Waivers of, not favored, 345. Waiver of, by retaining property, 345. Action for, though contract performed, 347. In criminal prosecution, 392. waives plea of former jeopardy, 392. GARNISHEE: Defects in affidavit waived by, 385. by appearance, 385. filing answer, 385. contra, 385. GOODS: Payment for, not demanded, waived, 32. on delivery, not waived unless so intended, 33. Title of, not to pass till paid for, 33. Right to re-take, waived by giving credit, 34. must be exercised promptly, 34. Fraud In sale of, waived by judgment, 67. by attachment, 68. B. L. W. 32 498 INDEX. [References are to sections.] GUARDIAN; GUARDIANS: Power of, to waive rights of infants, 8, 9. to waive statute of limitations, 9. jurisdictional process, 10. HEAD OF FAMILY: Exemptions to, 182, 183. Whether may waive exemptions, 183, 184. Homestead exemptions of, 188. Failing to claim exemptions, wife may, 188. HOLDER: Laches of in regard to presentment and protest, 81, 83, 86, 89, 94, 95. waived by part payment, 95. May show that endorser knew of laches, 96. HOMESTEAD: Right of, to be asserted, 187, 189. is a personal one, 187. to head of family, 188. Wife may assert, 188. Not divested by judgment, 189. HUSBAND AND WIFE: Privileged communications between, 198. statutory provision for, 198. waived by testifying, 198. by failing to object, 198. by other acts, 198. IGNORANCE: Of legal effect of failure of presentment and protest, 94. Of law, 73. IMPLIED PROMISE: By endorser to pay, by asking more time, 84. delay of suit, 84. As waiver of statute of limitations, 220. from acknowledgment of debt, 220. requisites of, 220, 221. INCONSISTENT: Remedies, election of, 65, 68. conclusive, 68. Language or conduct, a waiver, 72. Attachment is, with lien of chattel mortgage, 112, 114. Personal action and foreclosure, not, 119. Conduct by mortgagee, 123, 127. Mortgage is, with mechanic's lien, 164. Collateral security not, with lien, 166. Conduct, waiver of exemptions by, 185. INDORSEMENT: Waiver in, 75. In contract separate from instrument, 75. Each, is independent of others, 75. Waiver subsequent to, 78, 80. INDEX. 499 [References are to sections.] Of waiver on insurance policy, 317, 318. authority of agents for, 317, 318. of proofs on policy, 337, 338. INDORSEE: Bound by waiver in bill or note, 74. Adopts terms of instrument, 74. Knowledge implied from indorsement, 74. Oral waiver by, 75. Waives presentment, etc. by promise to pay, 76. Requesting extension of time, 78, 84, 87. Rights of not affected by agreements between holder & maker, 78. Waiver by, of demand, etc. at maturity, 79. by admitting liability, 79, 80. Presumption from conduct of, 81. Waiver by, must be with knowledge, 81. Must show laches of holder, 81. New promise by, after release, must be unconditional, 83. implied from asking delay of suit, 84. Knowledge of facts imputed to, 88, 89. Part payment by, no waiver, 89. Knowledge of laches of holder presumed, 90, 91. Payment by, waives demand and protest, 95. paying interest, 96. receiving security, 97, 98, 99, 100. taking assignment, 97, 98, 99. taking confession of judgment, 97. if security is sufficient, 99 to 102. Taking security at time of indorsement, 101. between indorsement and maturity, 101. after maturity, 102. Waivers by, as affected by statute of frauds, 109. INDICTMENT: Failing to state offense, 388. cannot be waived by accused, 388. INCOMPETENCY: (See: Witness; Objections; Evidence.) INFANTS: Power of, to waive rights, 7. May disaffirm contract, 8. Judgment by default against, 8. Statute of limitations, guardian cannot waive, 9. nor jurisdictional process, 10. Attorney cannot waive process for, 11. JNN-KEEPERS: Lien of, depends on possession, 153. waived by surrender of possession, 153. possession of goods obtained by fraud of guest, 153. waived by taking security for debt, 153. or giving credit, 153. 500 INDEX. [References are to sections.] INSURANCE: Non-payment by mortgagor, 135. Carried on by corporations, 262. Companies must act by agents, 262. Limiting power of agents, 262, 263. General rules of agency applicable to, 263. Conditions in policies, 264. agents may waive, 265, 266. Knowledge of agent is knowledge of insurer, 266. Agent as representing insured, 266, 267, 268. Insurer questioning acts of its agents, 266. Agent held out as such by insurer, 267. Statements in applications unknown to applicant, 267. Who are agents of insurer, 269. Restricting authority of agents, 269, 270. insured must have knowledge of, 271. Whether clerks are agents, 272, 273. Sub-agents, 272. Additional, waiver of condition against, 273. Acts prohibited by charter, 274, 275. Insurer acting contrary to charter, fraud, 275. Violating by-law, 275, 276. Policy not void for violation of by-law, 276. Knowledge of all facts when policy issued, 277. Breach of conditions before delivery of policy, 277. delivering policy with knowledge of, 277. waived by silence of insurer, 278. Breach of condition as to title, waived, 279, 280. by delivering policy with knowledge, 279, 280, 28L by other conduct, 291, 292. Oral application without disclosing encumbrances, 282. waiver by insurer failing to inquire, 282. by agent failing to mention, 282, 284. by agent's advising not to mention, 282. by delivering policy, 282, 284. by collecting premiums, 282. knowledge by insured of false answers, 282. Breach of condition as to vacancy, waived, 285. Use of premises, breach of condition as to, waived, 286. by delivering policy, 286. Breach of condition as to prior insurance, 287, 288. knowledge of, by agent, 287, 288. waived by taking premiums, 287, 288. by issuing policy, 287. "Iron-safe" clause, 289. breach of, known by agent, 289. Endorsing on policy consent to transfer title, 291. Vacancy of premises after delivery of policy, 293. whether agent may waive, 293. endorsing consent on policy, 293, 294. not waived by silence, 294. Encumbrances after delivery of policy, 295, 296. waived by assent or conduct, 295, 296. INDEX. 501 [References are to sections.] Mis-use of premises after delivery of policy, 297, 298. not waived by silence of agent, 297, 298. nor failure to cancel policy, 297. by consent of agent, 298. Additional insurance, 299. waiver by insurer, 299. by agent, 299, 301. consent endorsed on policy, 300. failure to endorse, 301, 302, 303. silence of insurer, 301, 302. failure to cancel policy, 303. collecting premiums, 303. Premiums, 304, et seq. collected by agents, 304. pre-payment of, waived, 304. orally or in writing, 304. by delivering policy without collecting, 305. by giving credit, 305, 306. by custom, 306, 307. after delivery of policy, 308. extension of time, 308. waived by conduct, 308. accepting past-due payment, 308, 309. authority of agents to waive time of payment, 310, 311. acceptance of by insurer, 311, 312. waiver by custom, 312, 313. cash payment, waiver of, 313. by accepting note, 314. by giving credit, 314. agent may waive, 314. Waivers in, indorsement of on policy, 317, 318. powers of agents for, 317, 318. Loss, notice of, 319. not waived by silence of insurer, 320. oral notice of, 320. conduct waiving, 320, 322. to agent, not to insurer, 321. contra, 322. out of time, 323. defective in form, 323. Loss, proof of, necessary unless waived, 324. waived by conduct, 324, 327, 328. by denying liability, 325. by refusing payment on other grounds, 326. by demanding arbitration, 327. by silence, 328, 331. defects in, waived unless objected to, 329, 331. failure to return, 330. contra, 331. objection on other grounds, 332. not filed in time, 333, 334. waived by conduct, 333, 334. whether agent may waive, 335, 336. whether waiver of may be oral, 337, 338. 502 INDEX. [References are to sections.] Arbitration, as a condition precedent to recovery, 339. may be waived by conduct, 339. by refusal to pay, 340. by denial of liability, 340. Limitation of time to sue, 341, et seq. slight evidence sbows waiver of, 341. waived by conduct, 341. by part payment of loss, 341. by promise to pay, 341. silence not a waiver, 342. other conduct not a waiver, 342. INSTRUCTIONS: Given, must be objected to, 457. Errors in must be pointed out, 457. in substance, 457, 458. in form, 458. waived unless objected to, 458. time for objections to, 458, 459. Written, right to, 459. waiver of, 459. by agreement, 459. Exception to, as given, 460. form of, 460. must point out defects in, 461. general exception not sufficient, 462. what waived, 462. Duty to request, 463. Omitted, waiver of, 463. Incomplete, must be requested, 463. Insufficient, must be requested, 464. Requests for, instances where necessary, 464. Refusal of, exception to, 465. error waived without exception, 465. error must be pointed out, 466. exception on one ground waives others, 466. Time for exceptions to, 467. Statutory provisions for exceptions to, 467. Exceptions to, after verdict, 468. after jury retire, 468. on motion for new trial, 468. on appeal, 468. INTEREST: Payment of, by endorser waives presentment and protest, 96. Non-payment of, by mortgagor, 132. Acceptance by mortgagee of part, effect of, 132, 134. Waiver of right to foreclose for non-payment of, 134. Payment of, as waiving statute of limitations, 224. INTENTION: Necessary ingredient of waiver, 14, 33. Makes time essence of contract, 36, 37, 40. To waive time, need not be express, 45. Tender, apparently waived without, 46. Uncommunicated, not to accept tender, 51. To abandon contract, in rescission, 66. INDEX. 503 [References are to sections.] l"o be bound by contract, waives rescission, 71. To forego right, waiver is, 1. Need not be express, 2. To waive presentment, protest and notice, 78. Evidence of, to pay note, waives demand, 80. Of mortgagee, in taking other security, 126. In waiver of mechanic's lien, 157. in taking mortgage, 164. in taking collateral security, 166. In waivers of the statute of limitations, 216. In waivers of irregularities in subscriptions to stock, 235, 238. "IRON-SAFE" CLAUSE: Conditions as to, in insurance policies, 289, 290. breach of, known to agent of insurer, 289, 290. waived by delivering policy, 289. by other conduct, 289, 290. by acquiescence, 290. JUDGE, SPECIAL: Objections to, 407. Must be special authority for appointment of, 407. Objections to competency of, waived unless asserted, 407. must be in reasonable time, 407. and before trial, 407. JUDGMENT: Recovering, waives fraud, 67. By default, against infant, 8. Indorser taking confession of judgment from maker of note, 97. Personal, no waiver of mortgage, 119, 127. At law, waives entry to foreclose, 138. No waiver of mechanic's lien, 168. Waiver of vendor's lien, 174. Does not divest homestead right, 189. Consent, right to appeal from, 476. Waiver of right to appeal from, 476. By stipulation, right to appeal from, 476. Payment of, appeal after, 477. Compliance with, right to appeal after, 478. Accepting benefits of, right to appeal after, 479, 480, 481. JURISDICTION: Over defendant, conferred by appearance, 352, 357, to 366. Over subject-matter, 367. cannot be waived, 367, 369. consent will not confer, 367. appearance will not confer, 367. Limited by statute or the constitution, 368. Parties cannot divest courts of, 369. by agreements to arbitrate, 369. Of offenses, 386. Over person of accused, appearance gives, 386. Waived by plea of accused, 386. by waiving extradition, 386. 504 INDEX. [References are to sections.] JURORS: Objections to panel, 408. failure to object, 408. objections to, waived by challenging the poll, 408. Objection to poll, waived by accepting, 409. must be made before trial, 409. Disqualification unknown to party, 410. not a waiver of, by acceptance, 410. of juror, waived by peremptory challenge, 411. waiver by accepting jury without exhausting peremptory challenges, 411. Number of, right to full, 414. at common law, 414. may be waived, how, 414. acts amounting to waiver, 415. JURY; JURY TRIAL: Waiver of, in misdemeanors, 394. not in felonies, 394. Species of arbitration, 395. in both classes, 395. Number of jurors, 396, et seq. in felonies, 397. cannot be waived, 397. nor consented to, 397. in misdemeanors, may be waived, 397. or agreed upon, 397. Acceptance of, waives disqualification, 409, 410. other acts as waiver, 411. Right to, guaranteed by constitution, 412. taken away only by consent, 412. may be waived, 412. whether waiver of is irrevocable, 412. submitting to reference, as waiver of, 413. other acts, as waiver of, 413. Right to full number of jurors, 414. at common law, 414. may be waived, how, 414. 415. Taking case from, 447. KNOWLEDGE: Landlord must have, of subletting to waive conditions, 64 Of fraud inducing contract, 66, 67. Of facts voiding contract, 68. Attachment after, waives fraud, 68. Necessary for rescission, 69. Of fraud, acting under contract after, 71. Is element of waiver, 2, 3. Where imputed, 2. Of facts in presentment and protest, 73, 93. Of law, in presentment and protest, 73. Of endorser, that maker absconded, 78. Of facts releasing endorser, 81, 88. No waiver by endorser, without, facts, 88, 89. May be imputed to endorser from facts, 58. Part payment without, no waiver by endorser, 89. INDEX. 505 [References are to sections.] Of endorser, presumed, 90. Burden of showing laches, on endorser, 92. contra, 90, 93. Of legal effect of holder's default, 93. Of endorser at time of part payment, 95. By mortgagee attaching property, 113, 114. Of facts, to set aside foreclosure sale, 144. Essential, in accepting surplus from foreclosure, 146. Must have, to waive redemption, 214. By subscriber of corporation, in waiving condition of sub- scription, 228. Of insurer's agent, is of insurer, 266, 316. knowledge of by insured, 271. By officers and agents of insurer, of provisions of charter, 274. Of insurer, of terms of charter, 274. of all facts, when policy issued, 277. as to title of property, 279. of encumbrances, by insurer's agent, 282. By insured, of false answer, 283. By insurer, of additional insurance, 301. By insurer, of cause of forfeiture, 315. LACHES: Waives breach of condition subsequent, 59. Waives right to rescind, 69, 71. Promise to pay after, of holder as to presentment, etc., 81, 85, 89. Of holder, to be proved by endorser, 83. Not waived by unaccepted offer of endorser to pay, 86. nor unless endorser has knowledge of, 88. Knowledge of, by endorser presumed, 90, 91. Burden of showing, on endorser, 92. contra, 93. Ignorance of endorser, of legal effect of, 94. In enforcing mortgage, 128. Of mortgagee, on default of mortgagor, 135. Of mortgagor, in setting aside mortgage sale, 143. As waiver of exemptions, 185. Waives right to redeem, 210, 212. LANDLORD AND TENANT: Acceptance of rent by landlord, waives forfeiture, 53. Landlord waives forfeiture by silence, 54. Forfeiture waived by landlord by recognizing lease, 60. Landlord must act promptly to enforce forfeiture, 60, 61. No waiver from permitting tenant to hold over, 60, 61. Landlord must claim forfeiture, 61. Tenant cannot complain of own default, 61. Acceptance of rent waives default of tenant, 62, 64. Acquiescence in delayed payment of rent, 62, 63. Receiving rent from assignee, no waiver of breach of condi- tion, 63. Forfeiture not waived by accepting rent after notice to quit, 63. nor for future breaches, 63. 506 INDEX. [References are to sections.] Landlord must claim forfeiture during term, 63. Forfeiture declared if tenant sub-lets, 64. Accept of rent from sub-lessee, 64. LAW: Knowledge of, in presentment and protest, 73, 94. LEASES: Conditions subsequent in, 60. Leasing premises to another, no waiver of breach of condi- tions, 61. Acceptance of rent by landlord, waives forfeiture, 62. Delay in paying rent acquiesced in by landlord, 62. Landlord must claim forfeiture during term, 63. Accepting rent from sub-lessee, 64. Landlord must know of sub-letting, 64. LEVY: Of attachment, waives right to rescind, 68. fraud in sale of goods, 68. affirms contract, 68. waives chattel mortgage, 112. equity of redemption, 112. as waiver of mortgage, 116. as waiver of mechanic's lien, 169. as waiver of vendor's lien, 174. Of execution, waives chattel mortgage, 116. not if on exempt property, 116. nor where execution abandoned, 116*. nor real estate mortgage, 119, 120. on mortgaged premises, 122, 123. on equity of redemption, 121, 122. waives carrier's lien, 151. mechanic's Hen, 169. vendor's lien, 174. on exempt property, 185. directing levy on exempt property, 186. on homestead, 187. LIEN; LIENS: Of chattel mortgage, waived by attachment, 112, 114. not lost by attachment, 114. waived by execution, 116. not where execution abandoned, 116. waived by attempted sale, 117. Of real estate mortgage, not changed by, 118. change in form of debt, 118. not waived by personal judgment, 119, 127. nor levy of execution, 119, 120, 123. contrary view, 122. taking other security, 125. new mortgage, 125. intention of mortgagee, 126. whether waived by attachment, 127. lost by delay in enforcing, 128. second, as waiver of priority, 128. INDEX. 507 [References are to sections.] priority of, waived by fraud or misrepresentation, 129. by extension of time, 130. Possessory, waived by surrender, 148. Of common carrier, 149, et seq. waived by surrendering possession, 150. must be voluntary, 150. by conduct, 150. waived by attaching goods, 151. by levying execution, 151. by giving credit, 152. Of Inn-keepers, based on possession, 153. lost by surrender of possession, 153. Of liverymen and agisters, 154. Of Attorney, waived by taking security, 155. not by delay in enforcing, 155. nor by taking note, 155. conduct waiving, 156. Mechanic's, waived by conduct, 157 et seq. whether taking note waives, 158, 159. note of a third person, 160. negotiation of the note, 161, 162. drawing draft, as waiver of, 163. waiver by taking mortgage, 164, 165. collateral security, 164, 166. not inconsistent with, 166. what is collateral security, 167. not waived by personal judgment, 168. whether waived by attachment, 169. by execution, 169. agreements waiving, 170. to arbitrate, 170. extending time of payment, 170. may be waived by agent, 171. waiver by sub-contractor, 171. Vendor's lien, waiver of, 172, et seq. by taking vendee's note, 172. collateral security, 172. mortgage, 172, 173. note of a third person, 172. waiver need not be in writing, 173. failing to enforce in reasonable time, 173. securing personal judgment, 174. attachment, 174. execution, 174. On corporate shares, 253, et seq. created by custom, 253. is waived if not asserted, 254. purchaser ignorant of, 254. not waived by taking security, 254. certificate reciting fully paid, 255. registration waives lien, 257. waived by giving credit, 257. Of attachment, waiver of, 384, 385. 508 INDEX. [References are to sections.] LIMITATION OP TIME TO SUE: In insurance, slight evidence to show waiver of, 341. Waived by conduct, 341. by part payment of loss, 341. by promise to pay, 341. silence not a waiver, 342. other conduct not a waiver, 342. LIMITATION: (See: Statute of Limitations.) LIQUOR: Condition in deed not to sell, on premises, 59. sale of single glass no breach, 59. LIVERYMEN AND AGISTERS: Lien of waived by surrender of possession, 154. surrender must be intended as absolute, 154. LOSS: In Insurance, notice of required, 319. not waived by silence of insurer, 320. oral waiver, 320. conduct waiving, 320, 322. to agent, not notice to insurer, 321. contra, 322. out of time, 323. defective in form, 323. Proof of, necessary unless waived, 324. waived by conduct, 324, 327, 328. by denying liability, 325. by refusing payment on other grounds, 326. by demanding arbitration, 327. by silence, 328, 331. defective, waived unless objected to, 329, 331. failure to return, 330. contra, 331. objection on other grounds, 332. not filed in time, 333, 334. waived by conduct, 333, 334. illustrations of, 334. \rhether agent may waive, 335, 336. whether may be oral, 337, 338. MECHANIC'S LIENS: Waiver of, from conduct, 157, et seq. Whether taking note waives, 158, 159. Taking note of third person, 160. negotiation of the note, 161, 162. Drawing draft as waiver, 163. Waiver of, by taking mortgage, 164, 165, 167. collateral security, 164, 166. not inconsistent with, 166. what is collateral security, 167. not waived by personal judgment, 168. Whether waived by attachment, 169. By execution, 169. INDEX. 509 [References are to sections.] Agreements waiving, 170. to arbitrate, 170. Extending time of payment, 170. May be waived by agent, 171. Waiver binds sub-contractor, 171. MISDEMEANORS: (See: Crimes; Criminal Law.) MIS- JOINDER: Of parties, 375. Cannot be objected to for first time on appeal, 375. Objection not waived by filing answer, 375. Of causes of action, raised by demurrer, 376. objected to in trial court, or waived, 376. by special demurrer, 376. by pleading over, 376. MIS-NOMER: Waived by proceeding to trial without objection, 360. MISREPRESENTATION : By mortgagee, waives priority, 129. By mortgagee under absolute deed, 202. In subscriptions to stock, 233, et seq. makes voidable, 237. waived by acquiescence, 237. by other acts, 238. MONEY: Necessary to produce, in tender, 47. production of, waived, 48. counting of, waived, 48, 50. Production of demanded, no waiver of tender, 51. MORTGAGES: Chattel, waived by attachment, 112, 114. Inconsistent with attachment, 112. Legal title under, 112. Equity of redemption in, 113. Attachment, property in custody of few, 114. Lien, held not waived by attachment, 115. waived by levying execution, 116. not where execution abandoned, 116. Attachment of proceeds of sale under, 117. Real estate, secure indebtedness, 118. not changed by change in form of debt, 118. several remedies under, 119, 121. not waived by personal judgment, 119. nor levy of execution, 120, 121, 122, 123. levy of execution on equity of redemption, 121, 124, taking other security, 125. accepting new mortgage, 125. intention of parties, 126. payment of, by taking new mortgage, 126. by renewal, 126. 510 INDEX. [References are to sections.] not waived by suit on note, 127. nor by judgment, 127. whether waived by attachment, 127. by delay in enforcing, 128. second, as waiving priority, 128. priority of, waived by misrepresentation, 129. release of mortgagor from personal liability, 129. waiver of priority by extension of time, 130. breach of conditions in, 131, et seq. payment of interest, 132. default of mortgagor waived by conduct of mortgagee, 132, 133, 134. default in paying taxes or insurance, 133, 135. or part of principal, 136. entry to foreclose, waived by conduct, 137. possession is foreclosure of, 138. entry under, waived by judgment, 138. by other conduct, 139. waiver must be by holder of, 140. foreclosure sale, waiver of, 141. by extension of time, 141. payment or part payment, 141. right to set aside, waiver of, 143. irregularities in, waived by redemption, 145. by accepting surplus, 146. by other conduct, 146, 147. taking, as waiver of mechanic's lien, 164, 165. of vendor's lien, 172. attorney signing, waives privilege of client, 192. redemption cannot be waived in, 200, 204. in deed as mortgage, 201, 204. once a mortgage, always a mortgage, 202. redemption from, waived by subsequent agreement, 208, 205, 208, 209. must be voluntary, 206. by conveyance to mortgagee, 207. by parol agreement, 209. statute of frauds affecting, 209. Is equitable right, 210. redemption must be in reasonable time, 210. time for, provided by statute, 211. lost by laches, 212. by other conduct, 213. must be consideration for waiver of, 208, 213. with full knowledge, 214. taking, no waiver of lien on shares in corporation, 254. NEGLIGENCE: Waiver inferred from, 2. MEW PROMISE: By endorser, to pay, 81. Raises presumption of demand, 81. Must be unconditional, 83. Need not be express, 83. Implied, 84. INDEX. 511 [References are to sections.] On condition, must be accepted, 85, 86. By endorser, without knowledge of facts releasing him, 88, 89. presumes knowledge, 90, 91. Part payment by endorser as, 95. Consideration for, 104, et seq. As affected by statute of frauds, 109. As waiving statute of limitations, 216, 219, 220, 222. NEW TRIAL: Motion for, must contain what, 471. Errors waived, not mentioned in, 471. Denial of, failure to except to ruling, 272. Grounds, not specified in, waived, 272. NON-SUITS: What is a non-suit, 447. Taking case from jury, 447. On motion of defendant, 447. Error in denying, waived by Introducing evidence, 448, 449. Waived by failure to renew motion, 449. Moving for, on one ground, waiver of others, 450. Ruling on, must be excepted to, or error waived, 451. NOT GUILTY: Plea of statute of limitations under, 226. NOTICE: Waiver of on face of bill or note, 73. Oral waiver of, 75. Waived by promise of endorser to pay, 76, 81, 83, 89. Waiver of, after endorsement, 78. by extension of time, 78, 84, 87. at maturity of paper, orally, 79. by admitting liability, 79, 80. Presumed from conduct of endorser, 81. Waived by conduct, 81. Waiver of, after maturity, 82. Knowledge of absence of, presumed, 90, 91. Proof of, waived, 91. burden of proof as to, 93. Paying interest as waiver of, 96. Receiving security as waiver of, 97 to 102. whether security taken to pay note, 103. Consideration for waiver of, 104, et seq. Of loss, under insurance policy, 319. not waived by silence of insurer, 320. oral waiver of, 320. conduct waiving, 320, 322. to agent, not to insurer, 321. contra, 322. out of time, 323. defective in form, 323. OATH: Necessary to administer, to witness, 416. Duty of party calling witness to have oath administered, 416. Failure to administer, waived unless objected to, 416. 512 INDEX. [References are to sections.] OBJECTIONS: To special judge, 407. waived unless asserted promptly, 407. To competency of witness, 419, 446. as soon as incompetency learned, 419. party calling, cannot make, 419. not waived by cross-examining, 419. Essential for appeal of any matter, 426, 427. Must be made in trial court, 427. when evidence is offered, 428. when too late, 428. To parol evidence, 429, 430. To secondary evidence, 429. To documentary evidence, 429. To variance of evidence from pleading, 429, 433, 440. Other inadmissible evidence, 429, 433. Incompetent evidence, 430. First made on appeal, 430. Specifying grounds of, 431, 442. and evidence objected to, 431. General, at trial, waives special on appeal, 432, 436, 437. To evidence partly admissible, 432. For incompetency, 433. waives other grounds, 433. To evidence as incompetent, irrelevant and immaterial, 434. evidence part admissible, 435. if admissible for any purpose, 436. waives competency of witness, 437. waives other objections, 437. Exceptions to foregoing rules, 438. Questions raised on appeal without, 438. Waived, if abandoned, 439. illustrations of, 439. For variance from pleading, 440. excluded on motion, 440. must be raised in lower court, 440. objection to evidence on other grounds, 440. when objection to be made, 440. To exclusion of evidence, waived unless exception taken, 443. To admission of evidence, waived unless exception taken, 444, 445. To order of proof, 446. Instructions given or refused must be objected to, 457. oral, 459. to refusal to instruct, 463. To verdict, must be prompt, 469. to defect in form of, 469. must be specific, 469. OCCUPANCY: Of building, no waiver of defects in, 23. OFFICERS: Of insurance companies, power to waive provisions, 270. to waive acts prohibited by charter, 274, 275. Notice to, is notice to insurer, 276. INDEX. 513 [References are to sectiong.l ORAL: Waiver of presentment and protest, 73, 75. Waiver at time of endorsement, 76. Waiver of demand, after endorsement, 78. at maturity, 79. Contract, defense against, 172, 179. Communication, privileged, 193. Agreement to waive redemption, 209. Waiver of additional insurance, 301, 302. of pre-payment of premiums, 304. Notice of loss under insurance policy, 320. Waiver of proofs of loss, 337. contra, 338. PAROL: (See: Oral; Evidence) PARTIES: Mis-joinder of, 375. appearing on face of complaint, 375. cannot first be raised on appeal, 375. not waived by filing answer, 375. Plaintiff, incapacity of, 377. PARTNERS: Waiver of privileged communications, 191. Not waived by endorser, of presentment and protest, 89. See, 95. Of Interest by mortgagor, 131, 132. Of mortgage debt after foreclosure, waiver, 141. As waiver of statute of limitations, 224. must be voluntary, 224. of interest, 224. Of subscriptions to corporation, waives conditions, 231. PAYMENT: In arrears, acceptance of, 40, 41. Time of, waived, 46. Extending time of, waives forfeitures, 56. Of purchase-price, waiver of fraud, 67. Making, waives right to rescind, 71. Promise of, by endorser, waives demand, etc., 76. 78, 79. New promise of, by endorser, 81. Offer of, unaccepted, 85. Promise of by endorser, must be with knowledge, 88, 89. Presumes knowledge, 90. As waiver by endorser, of demand and notice, 95, 96. Of mortgage, by taking new mortgage, 126. Delay In, presumes payment of mortgage, 132. Of taxes or insurance, failure In, by mortgagor, 135. Receipt of, waives entry to foreclose, 137. Of mortgage, by conveyance to mortgagee, 208. Implied promise of, waiving statute of limitations, 220. Promise of, as waiving statute of limitations, 222. Part payment, as waiver of statute of limitations, 224. Of interest. 224. B. L. W. 33 514 INDEX. [References are to sections.] For subscriptions, as waiver of conditions, 230, 231. For insurance premium, waiver of pre-payment, 304, et Seq. Time of payment, 304, 314. Of judgment, waiver of right to appeal, 477. Accepting payment of judgment, waives right to appeal, 479, 480, 481. PHYSICIAN AND PATIENT: Privileged communications between, 196. waived by attorney, 196. by assignee, 196. by heir-at-law, 196. by guardian, 196. waived bv implication, 197. calling physician as witness, 197. failing to object, 197. patient testifying, 197. by other acts, 197. PLACE: For tender, 146. PLAINTIFF: Need not plead that contract is In statute of frauds, 177. Must bring suit in court having jurisdiction of subject-matter, 367. Cannot consent to jurisdiction, 367. Incapacity of, ground of demurrer, 377. or taken by answer, 377. waived unless objected to prior to trial, 377. taken by special demurrer, 377. PLEADING; PLEADINGS: Plaintiff need not show statute of frauds, 177. Defendant must plead statute, 177, 181. Statute of frauds under general issue, 179. Privileged communication waived by, 194. Failure to plead statute of limitations, waiver, 225. not in criminal cases, 226. Election between tort and contract shown only by, 351. To merits, waives defects in complaint, 371. Answering after overruling of demurrer, 373. held waiver of defects in complaint, 373. contra, 374. Venue, waiving by not objecting to, 372, 380. Former jeopardy, to be set UD by special, 389. Variance of proof from, 429, 433, 440. PLEDGE: As waiver of exemptions, 185. POLICY; POLICIES: Conditions in, 264. waiver of, forbidden, 264. agents may waive, 265, 266. Provision that agent shall represent insured, 266. INDEX. 515 [References are to sections.] Filling in and delivering, as constituting agency, 269. Restrictions on authority of agents, 269, 270. general and local, 270. Officers waiving provisions in, 270. Countersigned by sub-agents, 272, 273. without knowledge of insurer, 273. Not void for violation of by-laws, 276. Breach of condition before delivery of, 277. Delivery of, with knowledge of invalidity, 277. waives condition as to title, 279, 280, 281, 291, 292. against encumbrances, 282, 284. as to vacancy, 285. as to use of premises, 286. as to prior insurance, 287. as to "iron-safe" clause, 289, 290. Endorsing on, consent to transfer, 291. Vacancy of premises after delivery of, 293. Endorsing on, consent to vacancy, 293, 294. not waived by silence, 294. Mis-use of premises not waived by failure to cancel, 297, 298. by consent of agent, 298. Additional insurance, consent endorsed on, 300. failure to endorse on, 303. to cancel, 303. Provide for payment of premium, 304. Delivery of, without collecting, for, 305, 306. Endorsement of waiver on, 317. Loss under, notice of, 319. not waived by silence of insurer, 320. oral notice of, 320. to agent, not to insurer, 321. contra, 322. conduct waiving, 320, 322. out of time, 323. defective in form, 323. endorsement of waiver on, 337, 338. Arbitration under, 339, et seq. POOR AND NEEDY: Exemptions for benefit of, 184. POSSESSION: Taking, not a waiver of damages, 15. Of building, not waiver of defects, 15. if defects are not discoverable, 23. Remaining in, waives right to rescind, 71. Is foreclosure of mortgage, 138. Mortgagee entering into, 141. Waives right to vacate sale, 145. Common law lien based on, 148. Surrender of, by carrier, waives lien, 150. by inn-keeper, 153. by liverymen, 154. 516 INDEX. [References are to sections.] POSSESSORY LIENS: Common law liens are, 148. Waived by surrender of possession, 150, 153. must be voluntary, 150. waived by conduct, 150. not by surrender of possession if conditional, 1BO. waived by attaching goods, 151. by levying execution on, 151. by giving credit for debt, 152. by taking security, 152. not by fraud, 153. PRACTICE: Criminal procedure: Jury waived in misdemeanors, 394. not in felonies, 394. is species of arbitration, 395. Number of jurors, 396, et seq. in felonies, 397. cannot be waived, 397. nor consented to, 397. in misdemeanors, 398. full number may be waived, 398. or agreed upon, 398. Self-crimination, 399, et seq. Objections to special judge, waived, 407. Objections to jurors, 408. must be made before trial, 408. waived by accepting jury, 409. disqualification of juror unknown to party, 410. Right to jury trial, guaranteed, 412. taken away only by consent, 412. may be waived, 412. whether waiver of, irrevocable, 412. acts amounting to waiver of, 413. Number of jurors, right to full, 414. at common law, 414. may be waived, how, 414. acts amounting to waiver, 415. Incompetent witness must be objected to, 419. as soon as incompetency learned, 419. party calling cannot make, 419. not waived by cross-examining, 419. Crimination of self, 420, et seq. privilege waived unless claimed, 421, 423. when to be claimed, 422. whether attorney may claim for, 423. extent of waiver, 424. testifying before grand jury, 425. at coroner's inquest, 425. Objection is necessary to any matter for appeal, 426, 427. must be made in trial court, 427. to evidence, \vhen offered, 428. when too late, 428. to parol evidence, 429, 433. to incompetent evidence, 430. other Inadmissible evidence, 429. 433. INDEX. 517 [References are to sections.] specifying evidence in, 431. general, at trial, precludes special, on appeal, 432, 436, 437. evidence admissible in part, 432. for incompetency, 433. waives other grounds, 433. as Incompetent, irrelevant and immaterial, 43 i. evidence admissible in part, 435. if admissible for any purpose, 436. waives competency of witness, 437. and other objections, 437. Exceptions to foregoing rules, 438. Objections waived, if abandoned, 439. illustrations of, 439. Variance of evidence from pleadings, 440. excluded on motion, 440. must be in lower court, 440. objection on other grounds as waiver of, 440. when objection to be made, 440. Exception must follow objection, 441. must specify ruling, 441. to each ruling as made, 442, 443. to exclusion of evidence, 443. when taken, 443. must be specific, 443. to admission of evidence, 444, 445. time for exception, 444, 445. must specify errors, 444, 445. Non-suit, right to, 447. on motion, 447. error in denying, waived by introducing evidence, 448, 449. failure to renew motion, 449. moving for on one ground, waives others, 450. ruling on, must be excepted to, 450. Demurrer to evidence, 452. waived by introducing evidence, 453. when taken, 453. must be exception to ruling on, 454. Directing verdict, 455. right waived by introducing evidence, 455. may move for, second time, 455. Instructions, 456, et seq. must be objected to, 457. errors in, must be pointed out, 457. waived unless objected to, 458. written, right to, 459. waiver of, 459. by agreement, 459. exceptions to giving, 460. must point out defects, 461. general exception, not sufficient, 462. what waives, 462. duty to request, 463. Omitted, waiver of, 463. 518 INDEX. [References are to sections.] incomplete, must be requested, 463, 464. refusal to instruct, exceptions to, 465. error waived without, 465. Verdict, objection to must be prompt, 469. Findings of fact, defects in, 470. exceptions to, 470. New trial, motion for, 471. denial of, waiver of errors in, 472. PREMIUM: Insurer receiving, waives breach of condition, 315. against encumbrances, 282. prior insurance, 287. change of title, 291, 292. additional insurance, 303. Agents collecting, 304. Payment of, waived, 304. orally or in writing, 304. by agent, 304. by delivering policy, 305, 306. by giving credit, 305, 306. by custom, 306, 307. Payment of, after delivery of policy, 308, et seQ. at maturity, waived, 308. extension of time for, 308. waived by conduct, 308. accepting past-due payment, 308, 309. authority of agents to waive, 310. acceptance by insurer, 311, 312. waiver of, by custom, 312, 313. Cash payment, waiver of, 314. by accepting note, 314. by giving credit, 314. PRESUMPTION: From conduct of endorser, 81, 93. Shifts burden of proof, 81. Of knowledge of laches, from promise of endorser to pay, 90, 92. That notice was given, 90, 91. Of presentment and protest, from part payment, 95. PREVENTION: Of perfomance of contract, a waiver, 25. operates as discharge, 25. contractee may recover, 25. Making performance impossible, same as, 28. Innocent party may recover contract price, 28. Demanding illegal performance, the same as, 29. or if party disable himself from performing, 29. Refusing to treat contract as subsisting, 30. refusal must be unequivocal, 31. and acted on by other party, 31. by one party, excuses other, 43. Of tender, 50. INDEX. 519 [References are to sections.] PRESENTMENT: For benefit of drawer or endorser, 72. May be waived orally or in writing, 73. 75. or by conduct, 73, 81. Statutory provision as to, 73. Waiver of, on face of instrument, 74. in endorsement, 75. Waived by promise to pay, 76, 81, 83, 89. Waiver of, after endorsement, 78. by extension of time, 78, 84, 87. at maturity of paper, 79. by admitting liability, 79, 80. Presumed, from conduct of endorser, 81. Waived after maturity, 82. Promise, as waiver of, must be unconditional, 83. by asking delay of suit, 84. not by asking for renewal, 89. nor by part payment, 89. Knowledge of lack of, presumed, 90, 91. Proof of, waived, 91. Ignorance of legal effect of failure in, 94. Waived by payment or part payment, 95. Payment, prima facie evidence of, 95. Paying interest, as waiver of, 96. Receiving security as waiver of, 97, 98, 99 to 102. Taking assignment, waives, 97, 98, 99 to 102. confession of judgment, 97 to 102. Whether security taken is ample to protect endorser, 99, 100. Security of endorser at time of endorsement, 101. between endorsement and maturity of paper, 101. after maturity, 102. whether security taken to pay note, 103. Consideration for waiver of, 104, et seq. Waiver of, as affected by statute of frauds, 109. PRIMA FACIE: Promise of endorser to pay, of knowledge of laches, 90, 92. Payment, evidence of demand and protest, 95. part payment, as, 96. Note, evidence of payment, 159. PRIOR INSURANCE: Condition against, waived by conduct, 287. Knowledge of, by agent, 287, 288. Condition against, waived by taking premiums, 287, 288. by issuing and delivering policy, 287, 288. Breach of condition against, renders policy voidable, 287. PRIORITY: Priority of mortgage, accepting second as waiver of, 128. Waiver of, does not destroy mortgage, 129. Misrepresentation of mortgagee waives, 129. Release of mortgagor from personal liability, 129. Waived by silence, 130. by extension of time, 130. 520 INDEX. [References are to sections.] PRIVILEGED COMMUNICATIONS: Giving evidence of, 190. Between attorney and client, 191. Waiver of, by administrator of client, 191. by partner, 191. by conduct, 191, 193. by attorney's signing will, 192. mortgage, 192. waiver may be, how, 154. May be oral, 193. Client becoming witness, 195. Between physician and patient, 196. waived by attorney, 196. assignee, 196. heir-at-law, 196. guardian, 196. waived by implication, 197. calling physician as witness, 197. failing to object, 197. patient testifying, 197. waived by other acts, 197. Between husband and wife, 198. statutory provisions for, 198. waived by testifying, 198. by failing to object, 198. by other acts, 198. PROCESS: Guardian cannot waive for infant, 10. Attorney cannot waive for infant, 11. Summons not essential, 352. Function of, 352. Waived by general appearance, 352. Defects in, waived by appearance, 353. Not waived by special appearance, 353. Waived by answering to merits, 353, 356. Defendant ignorant of defects, 354. Service of, set aside, when, 355. Illustrations of waiver of, 357, 359. Defects in, waived by proceeding to trial, 358. contra, 358. Exceptions to, must be properly saved, 358. Waiver of, after judgment, 359. In wrong name, waiver, 360. Special appearance, not waiver of, 362, 363. what is special appearance, 363, 364. appearance under protest, 364. Exemption from service of, 366. Who are exempt from, 366, 368. exemption from, must be claimed, 366, 368. waived by entering appearance, 366. PROMISE: Of marriage, broken by marriage to another, 30. Executory, mere promise, unless on consideration, 4. By endorser to pay note, 76, 78, 79. New, by endorser, to pay, must be with knowledge, 81. INDEX. 521 [References are to sections.] and unconditional, 83. New, implied from asking time, 84. On condition, must be accepted, 85. By endorser ignorant of facts, no waiver of demand, etc., 88. presumes knowledge, 90, 91. Burden of showing knowledge at time of, 92. Implied from acknowledgment of debt, 220. as waiver of statute of limitations, 220. to pay, as waiving statute of limitations, 222. part payment as, 224. must be voluntary, 224. payment of interest as, 224. PROOF; PROOFS: Burden of, presumption shifts, 81. Of demand and protest, waived, 91. Burden on endorser to show laches of holder, 92. contra, 93. Of loss under insurance policy, 324. waived by conduct, 324, 327, 328. by denying liability, 325. by refusing payment on other grounds, 326. by demanding arbitration, 327. by silence, 328, 331. defects in, waived unless objected to, 328, 329, 331. failure to return, 330. contra, 331. objection on other grounds, 332. not filed in time, 333, 334. waived by conduct, 333, 334. whether agent may waive, 335, 336. whether waiver of may be oral, 337. contra, 338. PROTEST: For benefit of drawer or endorser, 72. Waived orally or in writing, 73, 75. or by conduct, 73, 81. Statutory provisions as to, 73. Waiver of, on face of instrument, 74. in endorsement, 75. Waived by promise to pay, 76, 81, 83, 89. Waiver of, after endorsement, 78. by extension of time, 78, 84, 87. by instructions not to protest, 78. Waiver at maturity of paper, 79. by admitting liability, 79. Presumed from conduct of endorser, 81, 90, 91. Waiver of, after maturity of paper, 82. by asking delay of suit, 84. not by asking renewal, 89. nor part payment, 89. Proof of, waived, 91. Ignorance of legal effect of failure in, 94. Waived by payment, 95. Payment prima facie evidence of, 95. 522 INDEX. [References are to sections.] Paying interest, as waiver of, 96. Receiving security, as waiver of, 97, 98, 99. Taking an assignment, as waiver of, 97, 98, 99. Taking confession of judgment, as waiver of, 97, 98, 99. Whether security ample to protect endorser, 99 to 101. Security taken at time of endorsement, 101. between endorsement and maturity, 101. after maturity, 102. when taken to pay note with, 103. Consideration of waiver of, 104, et seq. Waiver of, as affected by statute of frauds, 109. PUBLIC POLICY: Waiver of exemptions, against, 183, 184. Against, to deny jury trial, 394. QUANTUM MERUIT: No recovery on, unless contract performed, 18. From part performance, 19. Contractor may recover on when prevented from performance, 26. Entitled to recover on, when work accepted, 42. REQUEST: (See: Instructions; Practice.) RATIFY; RATIFICATION: Of fraud, 66. Of voidable sale, 68. Election of, final, 69. Acts of, 71. Infants may, contracts, 8. Of foreclosure sale, by redemption, 145. Of fraudulent subscriptions, by acquiescence, 237. Waives irregularities in corporate meetings, 242. Silence is, 242. Of irregular assessments, 245. Of acts of agents in waiving payment of premiums, 311. Of act of tort-feasor, 344. Of fraud, 346. REAL ESTATE MORTGAGES: Secures debt, not note, 118. Not changed by change in form of debt, 118. Mortgagee has several remedies, 119, 121. Not waived by personal judgment, 119. nor levy of execution, 120, 121, 122, 123. Levy on equity of redemption, 121, 124. Waived by taking other security, 125. by accepting new mortgage, 125. intention of parties, 126. Payment of, by taking new mortgage, 126. by renewal, 126. not waived by suit on note, 127. nor by judgment, 127. whether waived by attachment, 127. by delay in enforcing, 128. INDEX. 523 [References are to sections.] Second, as waiving priority, 128. Waiver of priority, does not destroy lien, 129. Priority waived by misrepresentation, 129. Release of mortgagor from personal liability, 129. Waiver of priority by extension of time, 130. Breach of conditions, in, 131, et seq. Payment of interest, 132. Default of mortgagor waived by conduct of mortgagee, 132. Foreclosure of, waived by extension of time, 132, 133, 134. Default in paying taxes or insurance, 135. or part of principal, 136. Entry to foreclose, waived by conduct, 137. Possession is foreclosure of, 138. Entry under, waived by judgment, 138. by other conduct, 139. waiver must be by holder of, 140. Foreclosure sale, waiver of by agreement, 141. by extension of time, 141. payment or part payment, 141. Foreclosure sale, right to set aside, waiver of, 143. Redemption waives irregularities in sale, 145. waived by other conduct, 146, 147. REASONABLE TIME: Rescission must be in, 70. What is, depends on facts, 70. Infant must disaffirm in, 8. Mortgagor has, to pay after default, 134. to set aside sale, 143. Failure to endorse vendor's lien within, 173. Exemptions must be claimed within, 184, 185. Redemption must be in, 210. For declaring forfeiture under insurance policy, 315. REASONABLE VALUE: Compensation for partial performance, 19. REDEMPTION: Equity of, not attachable, 112. levy of execution, 121. sale of, 121, 124. Foreclosure sale may be set aside within time for, 144. Waiver of right to vacate sale by, 145. In mortgage, cannot waive, 199, 200, 201, 204. even though such be intention, 200. in deed, as mortgage, 201. by separate instrument, 202. In absolute conveyance, 203. From deed of trust, 204. Waived by agreement after mortgage, 205, 206, 207, 208. must be voluntary, 206. by conveyance to mortgagee, 207. by parol agreement, 209. Statute of frauds affecting, 209. Is equitable right, 210. Must be in reasonable time, 210, 212. 524 INDEX. [References are to sections.] Time for, provided by statute, 211. Lost by laches, 212. By other conduct, 213. Must be consideration for waiver of, 208, 218. with knowledge, 214. RELINQUISHMENT: Waiver is, of right, 1. REMEDY; REMEDIES: Election of one, waiver of others, 65. Inconsistent, choice of, 68, 69. Under mortgage, 119, 121, 127. Attachment and lien cumulative, 169. In tort, or on implied contract, 343. choice of one, waives other, 343. RENT: Acceptance of, by landlord waives forfeiture, 53. Payment of, condition subsequent, 60. Acceptance of, waives default of tenant, 62. Payment of, acquiesced in by landlord, 62, 63. Accepting, not a waiver of future defaults, 63. Acceptance of, from sub-lessee, 64. landlord must have knowledge of subletting, 64. RESCISSION: Waived by accepting payment, 40. Of contract induced by fraud, 66. Receipts under contract must be returned on, 66. Waived by action to enforce contract, 67. by paying purchase-price, 67. by attaching goods sold through fraud, 68. Delay in, fatal, 70. Must be in reasonable time, 70. Making payments waives, 71. Asking extension of time as waiver of, 71. Remaining in possession waives right of, 71. Of contract for subscription to corporations, 237. Selling property waives, 345. RULING; RULINGS OF COURT: Exceptions to, 441, et seq. must specify grounds and ruling, 441, 442. Each must be excepted to, 443. Excluding evidence, 443. Admitting evidence, 444. On non-suit, must be excepted to, 451. On demurrer to evidence, 454. On instructions given, exceptions to, 460. Denying motion for new trial, 472. INDEX. 525 [References are to sections.] BALE: Waiver of, in foreclosure, 141. by agreement, 141. by extension of time, 141. accepting payment, 141. or part payment, 141. Right to set aside foreclosure, waived, 143. by laches of mortgagor, 143. Redemption waives irregularities in, 145. Accepting surplus, waives defects in, 146. Irregularities in, waived, 147. SECURITY: Receiving by endorser, as waiver of demand and protest, 97. 98, 99, 100, 101. Whether taken by endorser, ample, 99, 102. Taken at time of endorsement, 101. Between endorsement and maturity of paper, 101. after maturity, 102. Whether taken by endorser to pay note, 103. Taking other, as waiver of mortgage lien, 125. taking new mortgage as, 125. Mortgagee taking after entry, waiver, 140. Taking, waives carrier's lien, 152. statute of limitations, 223. SELF-CRIMINATION: (See: Crimination of Self.) SERVICE: Of process, waived by appearance, 352, 353. Not waived by special appearance, 353. Set aside, when, 355. Illustrations of waiver of, 357, 359. Waived by answering, 358. by proceeding to trial, 358. answering over, held no waiver, 358. Objections to defects, must be saved, 358. Waiver of, after judgment, 359. In wrong name, waiver, 360. Not waived by special appearance, 362, 363. what is special appearance, 364. appearance under protest, 364. Exemption from, 366. who are exempt, 366, 368. exemption must be claimed, 366. waiver by permitting default judgment, 366. by entering appearance, 366. Of garnishment writ, 385. SHARES: On subscription, 227. Conditions in, waived, 228. By silence, 228. Conditions in, waived by conduct, 230. by payment on, 230, 232. by part payment on, 231, 232. 526 INDEX. [References are to sections.] Fraud or misrepresentation in subscription, 233, et seq. Waiver of written subscription, 235. of defects or irregularities, 235, 236. Forfeiture of, for non-payment, 246. enforcing, waives right to suit, 247. waived by delay in enforcing, 246. Transfer of, must be on books, 249. Powers of assignor and assignee, 249. Irregularities in, waived by corporation, 250. by recognizing assignee, 250. defects in waived by assignee, 250. Where legal title rests, 251. Consent of directors to transfer, 252. waiver by custom, 252. Lien on, how created, 253. by custom, 253. is waived, if not asserted, 254. purchaser ignorant of, 254. not waived by taking security, 254. Certificate reciting fully paid, 255. Certificate should show lien, 256. Defects in transfer waived by registration, 257. by giving credit, 257. SILENCE: By landlord, waives forfeiture, 54. Not sufficient as a waiver, when, 2. As waiver of priority of mortgage, 130. Waives statute of frauds, 177. Conditions in subscriptions, waived by, 228. Is ratification of irregular acts of corporations, 242. Of insurer, waives breach of condition, 278. Not waiver of vacancy of premises, 294. Waiver of additional insurance, 301. As waiver of notice of loss, 320. defective in form, 323. As waiver of proofs of loss, 328, 329, 331. Not a waiver of limitation for suit, 342. SINGLE MAN: Waiver of exemptions by, 184. SPECIAL APPEARANCE: (See: Appearance.) SPECIFIC PERFORMANCE. No tender of purchase-price necessary in, 49. Action for, waives forfeiture, 56. STATUTE OF FRAUDS: Liable on part performance of contract, 26. As affecting waiver of presentment or protest, 109. Waiver of vendor's liens, not within, 173. Provisions of, 175. Defense of, not self-operative, 176. May be waived by conduct, 176. Plaintiff need not plead compliance with, 177. INDEX. 527 [References are to sections.] Statute, matter of proof, 177. Personal right of defendant, 177. Defendant waives, by silence, 177. Defendant must plead and prove, 177, 178. Under the general issue, 178, 179. Cannot be first raised in instructions, 179. Raised by objection to evidence, 179. Not raised by admission of making contract, 179. Waived by defending solely on other grounds, 180. . Not waived by administrator, 180. Waiver of, is permanent, 181. As defense on cross-bill, 181. Cannot be first raised on appeal, 181. or motion for new trial, 181. nor on second trial unless on first, 181. In waiver of equity of redemption, 209. STATUTE OF LIMITATIONS: Guardian cannot waive for infant, 9. Delay for period for enforcing mortgage, 128. Belongs solely to debtor, 215. Waived by agreement or conduct, 215, 216. Consideration for waiver of, 217. Forbearance to sue, as waiver of, 217. Waiver of, creates new period, 218. by acknowledgment of debt, 219. by statute, 219. Suit barred in definite time, 220. Acknowledgment to waive, must be promise to pay, 220. implied promise to pay, 220. requisites of, 221. Promise to pay as waiver of, 222. Waiver by letters, 223. by giving check, 223. by giving security, 223. part payment as, 224. must be voluntary, 224. by payment of interest, 224. by failing to plead, 225. not in criminal cases, 226. Must be asserted before verdict, 226. Plea of, in action in tort, 351. STATUTE; STATUTES: Regulating exemptions, 185. To be followed, 185. Homestead exemptions, 187, 189. As to privileged communications, 191. Provisions by as to communications between husband and wife, 198. Provisions for redemption, 211. Provisions of, as to statute of limitations, 219. Jury trial, right to by, 394. 528 INDEX. [References are to sections.] STATE: Right to forfeit charter of corporation, 258, et seq. waived by permitting corporatfon to continue, 258. waiver, question of intention, 258. Illustrations of waiver, 259, 260. cases where not waived, 261. STOCK: (See: Shares.) STOCKHOLDER'S MEETINGS: Waiving notice of, 231. To be regularly called, 241. Irregularity in, may be waived, 242. must be by all members, 242. waived by attendance, 242. by subsequent ratification, 242. Notice of, cannot be waived, 243. contra, 244. STOPPAGE IN TRANSITU: Right to, waived when right to rescind waived, 71. SUBSCRIBER: Waiver by, of condition of subscription, 227. must know of rights, 228. may be by silence, 228. by conduct, 230. by subscribing prior to incorporation, 230. acting as director, 230. voting at meetings, 230. paying calls, 230, 232. waiving notice of meeting, 231, 243-4. Fraud in subscription by, 233, et seq. Waiver of written subscription by, 235. of irregularities in subscription, 236. SUBSCRIPTIONS: On condition, 227. Waiver of condition, 227. must be with knowledge, 228. may be by silence, 228. by conduct, 230, acting as director, 230. voting at meetings, 230. paying calls, 232, 230. Waiving notice of meeting, 231. Fraud or misrepresentation in, 133, et Beq. Waiver of written subscription, 235. of defects in, 235. of irregularities in, 235, 236. Fraud makes voidable, 237. waived by acquiescence, 237. acts waiving, 238. SUBSTANTIAL PERFORMANCE: Not sufficient for recovery, at common law, 16, 17. INDEX. 529 [References are to sections.] SUMMONS: (See: Process.) SURRENDER: Waiver is, of right, 1. Of possession, waives lien, 148. of common carrier, 149, 150. must be voluntary, 150. of inn-keeper, 153. Of property, as waiver of exemptions, 185. TAXES: Non-payment of, by mortgagor, 135, 144. TENDER: Law of, must be followed, unless waived, 46. To whom made, 46. Requisites of, 46. Condition may be coupled with, 46. What is waiver of, 47. Money, necessary to produce in, 47. Formalities of waiver, 47. Refusal to accept on one ground, waiver of others, 47. Medium of, 47. Need not be made if other party refuses to accept, 48. Failure of, waived by failure to object, 48. Waiver may be before or after tender, 49. Declaring contract ended, waiver of, 49. Prevented, waiver of, 50. Of purchase-price in specific performance, not necessary, 49. Waived by later acceptance, 50. Not waived by demand for larger sum than offered, 61. nor by failure to object, 51. nor by uncommunicated intention not to accept, 61. TESTIMONY: Giving, waives privileged communication, 194. Of patient, waives privilege, 197. As waiver of privilege between husband and wife, 198. Of accused, waives privilege, 399. Of incompetent witness, 419. TIME: Whether essence of contract, 36. not in equity, 36, 37. Is of essence when so intended, 37. Reasonable, where not provided for, 37. If of essence, default discharges contract, 381. If not of essence, reasonable time to be given, 38. Where essence of contract, may be waived, 39. Extending, waiver by, 42. Reasonable time, thirteen years not, 42. Waived, if party hindered in performance by other, 45. where change is directed, 44. depends on intention of parties, 45. not waived by acceptance, 45. Of tender, waived, 47. B. L. W. 34 530 INDEX. [References are to sections.] Of waiver of tender, 49, 50. Waived by proceeding under contract, 56. House to be built in certain time, forfeiture enforced, 68. Rescission must be in reasonable, 70. Asking extension of, waiver of right to rescind, 71. Infant, must avoid contract in reasonable, 8. Request for, by endorser, waives demand, etc., 78. Agreement to extend, by endorser, 87. Extension of, as waiver of priority of mortgage, 130. Of non-payment of interest, 132. Extension of, as waiver of foreclosure sale, 141. as waiving mechanic's lien, 170. Reasonable, allowed for redemption, 210, 211. Fixed by statute for redemption, 211. Suit barred in certain time, 220. To pay premiums, waiver of, 309, 310, 314. Notice of loss under policy out of, 323. Proofs of loss not filed in, 333. Waiver of, by conduct, 334. For objections (See: Objections). For exceptions (See: Exceptions; Practice). TITLE: Breach of condition as to, waived by insurer, 279, et seq. by delivering policy, 279, 280, 281. Change in, 291, et seq. contrary to policy, waiver of, 291. by accepting premiums, 291. endorsing on policy consent to change, 291. TORTS: Right to sue in, or on implied contract, 343, 349. Choice of one, waives other, 343. only where property converted to money, 343. May disaffirm act of tort-feasor, 344. may affirm act, 344. Fraud in contracts, waiver of, 345. Deceit, not waived by accepting payment on note, 345. how waived, 346. Right of rescission, 347. Conversion, action for, 348. May waive, and sue on contract, 348. No right to set-off, 349. What recovered in action in, 349. illustrations of, 350. Election between, and contract, shown only by pleading, 351. results of, 351. Plea of infancy in suit on, 351. of statute of limitations, 351. of exemptions, 351. Election in, irrevocable, 351. TRIAL: (See: Practice.) INDEX. 531 [References are to sections.] USE: As acceptance of performance of contract, 12. No waiver of defects, if involuntary, 13, 14. USE OF PREMISES. Forbidden, by policy of insurance, 286. renders policy void, 286. knowledge of insurer as to, 286. waiver, by delivering policy, 286. subsequent to delivery of policy, 297, 298. not waived by silence of agent, 297, 298. nor failure to cancel policy, 297. by consent of agent, 298. VACANCY: Of premises, knowledge of by insurer, 285. Breach of condition against, in policy, 285. waived by delivering policy, 285. after delivery of policy, 293. whether waived by agent, 293. endorsing consent on policy, 293, 294. not waived by silence, 294. VARIANCE: By parol, of written instrument, 76. Between pleading and proof, 429, 433, 440. advantage of, taken on motion, 440. must be in lower court, 440. objection to evidence on other grounds, 440. when objection to be made, 440. VENDEE: Accepting payment, waives forfeiture by, 56. Fraud of, waived by judgment against, 67. Note of, as waiver of lien, 172. VERDICT: Directing, 455. Right of waived by introducing evidence, 455. may move second time for, 455. Exceptions to instructions after, 468. Objections to, must be made promptly, 469. on appeal, 469. must be specific, 469. no exception necessary, 469. VENDOR: Default of in payment, waived, 56. Accounting with vendee, waives forfeiture, 56. Lien of, waived by taking note, 172. collateral security, 172. mortgage, 172. notes of a third person, 172. waiver need not be in writing, 173. failing to enforce in reasonable time, 173. procuring judgment, 174. attachment, 174. execution, 174. burden of proving waiver, on vendee, 174. 532 INDEX. [References are to sections.] VENDOR'S LIENS: Waiver of, 172, et seq. by taking vendee's note, 172. collateral security, 172. mortgage, 172, 173. notes of a third person, 172. not to be encouraged, 173. need not be in writing, 173. Procuring judgment as waiver of, 174. attachment, 174. execution, 174. burden of proving waiver on vendee, 174. VENUE: Objection to, must be raised before trial, 379. waived by conduct, 379. by not objecting, 380. by appearance, 380. by stipulation for removal, 380. by filing answer, 380. by moving for continuance, 381. WILL; WILLS: Attorney signing, waives privilege of client, 192. Revoking, waives privilege of patient, 196. WITNESS; WITNESSES: Client becoming, as waiver of privilege, 195. Accused, becoming, waives privilege, 399. has same rights as others, 399. Failure to administer oath to, 416. waiver of, 416. Depositions of, 417. defective notice, waiver of, 417. irregularities, in, waived, 417. objections to, to be made at time of taking, 418. Incompetency of, must be objected to, 419. as soon as learned, 419. party calling, cannot make, 419. not waived by cross-examining, 419. Crimination of self, 420, et seq. what is the privilege, 420. tendency to criminate, 420. privilege waived unless claimed, 421, 423. when to be claimed, 422. whether attorney may claim for, 423. extent of waiver of, 424. testifying before grand jury, 425. at coroner's inquest, 425. Competency of, question waived by general objection, 437. by failure to except, 446. WRITTEN INSTRUMENT: Varying terms of, 76. Endorsement of, 76. Waiver of redemption to be by, 29. WAIVER: (SEE THE VARIOUS TITLES UNDER THIS INDEX, FOR.) UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. CT13J978 OCT121978 PSD 1916 8/77 UC SOUTHERN REGION 000 704 812 7